THE 


LAW  OF  PLEADING 


m 


CIVIL  ACTIONS  AND  DEFENSES 
UNDER  THE  CODE 


ALSO  PRACTICE  IN 


APPEAL  AND  ERROR 


WITH 


NUMEROUS  FORMS  AND  PRECEDENTS 

CWTEH  SPECIAL  REFERENCE  TO  THE  OHIO  CODE) 


BY 

EDGAR  B.  KINKEAD 

Oy  THE  CoLTTnaus,  Ohio,  Bas 


YOLUME  I 


CINCINNATI 

W.  H.  ANDERSON  AND  COMPANY 

1895 


V.  I 


Copyright,  1894, 

BY 

"W.  H.  ANDERSON  AND  COMPANY. 


mXRODUCTORY. 


In  introducing  this  work  the  writer  has  no  apology  to 
offer,  except  that  members   of  the   bar  have  frequently  suo-- 
gested   the  need  of  a  new  book  on  ))leading.     The  subject 
is  one  of  the  most  important  in   the  whole  category  of  the 
law,  and  yet  the  actual  preparation  of  pleadings  is  not  always 
attended  with  that  care  and  technical  precision  so  essential. 
In  this  age  of  experience  and  practice  under  the  code, 
the  profession  generally   being  of  the  opinion  that  it  is  a 
model  system  in  all  respects,  it'  is  unnecessary  to  say  any- 
thing in  its   behalf.     It   stands  out  as  one  of   those  great 
reforms  peculiar  to  the  American  people.     The  memory  of 
the  late  distinguished  jurist  so  largely  instrumental  in  the 
promulgation  of  the  first  code  will  live  as  long  as  the  code 
system  prevails,  while  its  denunciation  by  those  wedded  to 
the   old   system  is   now  forgotten.     The   principles    of   the 
common-law   system   were   only  moulded   into  simpler  and 
more  convenient  form.     No  inconvenience  has  been  exj3eri- 
enced  in  the  practical  operation  of  the  code  system,  except 
in  the  proper  and  more  desirable  mode  of  trial  where  leo-al 
and  equitable  causes  of  action  have  been  united.     The  rules 
and  principles  were  not  materially  modified.     Changes,  how- 
ever, must  always  be  made  as  time  passes,  and   new  princi- 
ples of  law  must  be  formulated  to  keep  pace  with  the  rapid 
advancement  of  civilization,  and  old  principles  more  clearly 
defined  bv  later  decisions.     Hence  new  rules  and  principles 
of  pleading  must  necessarily  be  established.     This  alone  justi- 
fies a  new  work  on  pleading  embodying  the  later  adjudica- 
tions on  the  subject. 


IV  INTRODUCTORY. 

In  attempting  to  supply  the  needs  of  tlie  profession,  the 
writer  has  proceeded  upon  the  theory  that  it  is  not  so  much 
the  theoretical  or  individual  discussion  of  principles  of  plead- 
ing that  is  desired  as  the  close,  careful  and  thorough  collec- 
tion of  rules  and  principles  deduced  from  decisions  old  and 
new,  supported  by  authority,  systematically  and  conveniently 
arranged  for  reliable,  ready  reference. 

The  writer  has  long  entertained  the  opinion  that  in  the 
present  age  the  busy  lawyer  will  disregard  the  personal  views 
or  theoretical  discussion  of  a  text-writer,  unless  the  author- 
ity is  cited  upon  which  it  is  based,  and  is  in  fact  the  reason- 
ing of  courts.  The  different  states  have  advanced  in  years, 
and  have  accumulated  a  mass  of  law,  and  the  busy  practi- 
tioner needs  this  briefly  and  logically  collated.  An  author 
who  does  this  is  performing  the  true  mission  of  his  calling 
and  rendering  service  to  his  profession.  His  duty  is  to  for- 
mulate the  law  as  disclosed  from  the  chaos  of  cases,  setting 
forth  inaccuracies,  pointing  out  conflicting  rules  and  princi- 
ples, not  omitting  personal  discussion  and  opinion  when  nec- 
essary to  accomplish  this  result. 

Adopting  this  plan,  the  writer  has  endeavored  to  prepare 
this  work  for  practical  every-day  use.  It  has  been  the  aim 
to  present  in  the  first  ten  chapters  all  the  general  principles 
of  pleading  in  actions  and  defenses  under  the  code  which 
are  applicable  alike  to  particular  actions  or  subjects.  In  sub- 
sequent chapters  the  subjects  have  been  taken  up  in  alpha- 
betical order,  completing  each  subject  in  one  chapter,  believing 
this  to  be  more  convenient  than  to  refer  the  reader  to  another 
portion  of  the  book  for  any  part  of  a  subject.  The  eight}'- 
two  particular  actions  or  subjects  have  been  thus  treated. 
In  the  text  preceding  the  forms  in  the  particular  actions, 
the  manner  of  pleading  is  pointed  out. 

The  work  is  closed  with  two  chapters  on  Appeal  and  Error, 
embracing  the  practice  in  appeal  in  all  its  phases  and  the 


INTRODUCTORY. 


practice  in  error  in  all  courts  having  jurisdiction  in  error. 
These  subjects  varying  in  different  states,  the  treatment  is 
largely  confined  to  Ohio. 

In  many  instances  the  region  of  pleading  has  been  de- 
parted from,  and  general  rules  of  law  and  rights  of  individ- 
uals outlined  where  it  seemed  advisable  to  an  understanding 
of  the  correct  mode  of  jjleading  in  the  particular  case ;  and 
in  the  citation  of  authority  throughout,  all  available  sources 
have  been  explored,  particularly  of  those  states  whose  codes 
are  similar.  The  decisions  of  courts  of  inferior  jurisdiction 
are  appropriately  used  because  of  the  fact  that  many  ques- 
tions' there  decided  do  not  go  to  the  higher  court. 

The  work  is  founded  upon  the  Ohio  Code,  and  its  provis- 
ions, as  well  as  statutes  not  strictly  part  of  the  Code,  are 
freely  inserted,  though  not  always  with  verbal  accuracy.  In 
many  instances  it  seemed  more  desirable  to  state  the  sub- 
stance so  long  as  the  meaning  was  not  mistaken  or  destroyed. 
While  the  book  is  based  upon  the  Ohio  Code,  authorities 
have  been  cited  from  all  code  states,  and  the  general  rules 
and  principles  of  pleading  applicable  in  code  states  have 
been  fully  discussed  throughout. 

Great  care  has  been  taken  in  the  collection  of  forms  and 
precedents,  the  aim  having  been  to  avoid  the  beaten  path  of 
set  forms  as  much  as  possible.  To  this  end  diligence  has  been 
exercised  in  obtaining  forms  from  cases  which  have  reached 
the  court  of  last  resort,  from  the  reports,  and  from  other 
cases,  in  many  instances  citing  the  case  from  which  they  were 
taken.  Many  members  of  the  profession  assert  that  they  do 
not  follow  forms ;  yet  they  are  frequently  "of  assistance  as  a 
guide,  and  convenient  to  follow  in  a  general  way  to  aid  in 
drafting  pleadings.  In  some  cases  special  allegations  in 
forms  have  been  separately  indexed,  thus  seeking  to  make 
them  more  useful,  as  special  averments  may  frequently  be 
used  when  the  whole  form  cannot. 


Vi  INTRODUCTORY. 

The  references  in  the  index  are  to  pages  principally,  un- 
less the  sectional  reference  is  indicated  by  the  character. 
This  plan  was  adopted  because  of  the  length  of  many  sec- 
tions ;  but  a  preference  for  sectional  references  is  the  reason 
for  the  mode  adopted. 

Care  has  been  exercised  to  detect  errors  in  citations  and 
other  inaccuracies,  but  they  may  appear.  Knowing  that  it 
is  easier  to  tear  down  than  to  build,  and  that  there  is  great 
opportunity  to  err  in  the  citation  of  so  large  a  number  of 
cases,  the  examiner's  indulgence  is  assumed. 

Several  gentlemen  have  rendered  valuable  assistance  in 
the  preparation  of  the  work.  Grateful  acknowledgment  is 
made  to  Paul  Jones,  Esq.,  of  the  Columbus,  Ohio,  bar  for 
the  chapter  on  Municipal  Corporations;  to  W.  G.  Way,  Esq., 
of  the  Marietta,  Ohio,  bar,  for  valuable  assistance  in  the 
preparation  of  the  chapter  on  Demurrer ;  and  to  Judge  D.  F. 
Pugh  and  Col.  J.  T.  Holmes,  of  Columbus,  Ohio,  for  advice 
and  counsel  during  the  progress  of  the  work. 

With  these  introductory  remarks  the  work  is  submitted 

to  the  profession,  with  the  earnest  hope  that  the  writer's 

efforts  may,  in  a  measure,  be  appreciated  and  found  of  value. 

Edgar  B.  Kinkead. 
Columbus,  Ohio, 

October,  1894 


SYNOPSIS  OF  CONTENTS. 


YOLUME  L 

Sections. 

Ch.  1.    Actions  Under  the  Code ' 

2.  Parties 

3.  Joinder  of  Actions 

■^                                                                                .         .  35-44 

4.  Venue 

5 .  The  Petition,  Including  Some  General  Rules  of 

„                                                                                      .  45-67 

Pleading       -        •        •        '       :        '  nn-f^'T 

6.  The  Answer,  Counter-claim  and  Set-off      .        .  ^°^t 
™        T-k                                                                                      •  88—92 

7.  The  Reply 

8.  Demurrer  to  Petition,  Answer,  Reply  and  Coun- 

ter-claim      .         117-125 

9.  Motions     .        • * 

10.  Amendments,  Supplemental  Pleadings  and  Con- 

SOLU>ATION  OF   ACTIONS ,QR_U- 

11.  Accord  and  Satisfaction        .....  J^g^g^ 

12.  ACCOUNT    .        .        • m-l':A 

13.  Accounting 175-181 

14.  Agents ^^^'_^^^ 

15.  Animals 200-219 

16.  Arbitration  and  Award ^ 

17.  ASSAULT   AND   B ATTERY  -  CiVIL  ACTION   IN   DAMAGES  ~-0-.34 

.  3o5-2bo 

18.  ATTACHMENT 069-071a 

19.  ATTORNEYS  AT   L^W — ^^^ 

20.  Bailments         -, 081-094 

21.  Banks  and  Bank  Checks 095.345 

22.  Bills  and  Notes 346-386 

23.  Bonds qs^-395 

24.  Breach  of  Promise  of  Marriage  .        .        .        •  ^^Lsg? 

25.  Building  and  Loan  Associations   ...  398-424 

26.  Common  Carriers     .        .        •        •        •        •        *  425.431 

27.  Contempt , 432-455 

28.  Contracts 456-4(>l 

29.  Contribution 4r,2-474 

30.  Conversion 475-492 

31.  Deeds 493-529 

32.  Divorce  and  Alimony 530-5^55 

33.  Dower 53^,544 

34.  Election  Contests 


VI 11 


SYNOPSIS   OF   CONTENTS, 


Ch. 


Sections. 

35. 

Executors  and  Administrators     ,        ,        .        . 

545-559 

36. 

False  Imprisonment 

560-569 

37. 

Foreclosure  of  Mortgages— Real  and  Chattel - 

Redemption  and  Declaring  Deed  a  Mortgage 

570-603 

38. 

Fraud  and  Deceit,  Consisting  of  False  Represen 

tations  and  Concealments 

604-620 

39. 

Fraudulent  Conveyances 

621-632 

40. 

Gaming      .... 

633-640 

41. 

Guaranty. 

641-650 

42. 

Habeas  Corpus 

651-661 

43. 

Husband  and  Wife  . 

662-667 

44. 

Indemnity 

668-671 

45. 

Infants     . 

672-677 

46. 

Injunction 

678-69 lb 

47. 

Innkeepers 

692-697 

48. 

Insurance  —  Fire 

698-716 

49. 

Insurance  —  Life 

717-726 

50. 

Interpleader   . 

727-728a 

51. 

Intoxicating  Liquors 

729-731 

52. 

Judgments 

732-735 

53. 

Landlord  and  Tenant    . 

736-751 

54. 

Libel  and  Slander  . 

752-769 

55. 

Liens 

770-779 

56. 

Malicious  Prosecction 

780-785 

57. 

:aiALPRACTICE       , 

786-789 

YOLUME  IL 


Ch. 


60. 
61. 
62. 
63. 
64. 

65. 


66. 
67. 
68. 


Mandamus         

Master  ant)  Servant  —  Relating  to  Matters 
Other  Than  Negligence  —  Contracts  of  Serv 
ice 

Mistake 

Money  Had  and  Received 

Municipal  Corporations 

Negligence  Causing  Death    . 

Negligence  of  Master  Causing  Death  of  or  In 
jury  to  Servant 

Negligence  Causing  Personal  Injury,  Including 
A  Discussion  of  General  Questions  of  Negli 
gence  Relating  to  Various  Relations  of  Par 
ties 

Negligence  Causing  Injury  to  Property 

Nuisance  ....... 

Partition 


Sections, 
790-814 


815-822 
823-825 
826-835 

836-877 
878-895 

896-913 


914-934 
93.5-941 
942-952 
953-966 


SYNOPSIS    OF   CONTENTS. 


IX 


Ch.  69.  PARTNERSHrP       .... 

70.  Principal  and  Surety     . 

71.  Private  Corporations    . 

72.  Proceedings  in  Aid  of  Execution 

73.  Quo  Warranto 

74.  Real  Actions,  Including  Actions  to  Quiet  Title 

Recovery    of  Possession,  and  Other  Actions 
Relating  to  Real  Estate 

75.  Receivers. 

76.  Replevin  .... 

77.  Reformation,  Rescission  and  Cancellation 

78.  Revivor  of  Actions  and  Judgments 

79.  Sales 

80.  Seduction  . 

81.  Specific  Performance 

82.  Statute  of  Limitations 

83.  Stock  and  Stockholders 

84.  Street  Railways 

85.  Subscription     . 

86.  Taxes 

87.  Trespass   . 

88.  Trusts 

89.  Warehousemen 

90.  Warranty 

91.  Waste 
93.  Wills 

93.  Relief  After  Judgment 

94.  Appeal 

95.  Proceedings  in  Error  in  Civil  Cases  —  Embracing 

THE  Practice  in  Error  in  the  Supreme,  Cir- 
cuit and  Common  Pleas  Courts  .... 


Sections. 

967-977 

978-989 

990-1015 

1016-1021 

1022-1038 


1039-1060 
1061-1077 
1078-1093 
1094-1106 
1107-1112 
1113-1122 
1123-1132 
1133-1145 
1146-1150 
1151-1161 
1162-1167 
1168-1174 
1175-1180 
1181-1189 
1190-1191 
1192-1194 
1195-1200 
1201-1206 
1207-1216 
1217-1219 
1220-1234 


1285-1295^ 


LAW  OF  PLEADmG. 


CHAPTER  1. 

ACTIONS  UNDER  THE  CODK 

Sec  1.  Action  defined.  [  Sec.  5.  Parties,  how  designated, 

2.  Form  of  action  under  the  code.  6.  Issues  under  code. 

3.  Civil  action  embraces   what.  7.  An     action    is    commenced 

4.  Legal  and  equitable  actions  when. 

under  the  code.  | 

Sec.  1.  Action  defined. —  An  action  is  an  abstract  legal 
right  in  one  person  to  prosecute  another  in  a  court  of  justice; 
a  suit  is  the  actual  prosecution  of  that  right.^ 

The  words  action  and  suit,  however,  as  used  in  the  code 
have  the  ^ame  meaning,-  though  we  still  speak  of  an  action  as 
applied  to  an  action  at  law,  and  a  suit  as  applicable  to  a  suit 
in  equit}',  thus  keeping  in  mind  tlie  former  distinction. 

Sec.  2.  Form  of  action  under  the  code, —  The  code*  merely 
abolished  the  distinction  between  actions  at  law  and  suits  in 
equity  as  to  name  and  form,  and  substituted  therefor  a  civil 
action;*  and  the  difference  between  legal  and  equitable  rights 
still  exists  in  reality,  although  not  in  form.  The  rights  and 
liabilities  of  parties,  legal  or  equitable,  as  distinguished  from 
the  mode  of  procedure,  remain  the  same  since  as  before  the 
adoption  of  the  code,®  and  the  court  is  to  be  regarded  as  a 
court  of  equity  or  a  court  of  law,  and  the  petition  a  declara- 

iPer  Wright.  J.,  in  Joseph  Hunt-  v.  Howard,  13  O.  S.  165,  168;  Culver 

er's  Will,  6  Ohio,  502.  v.  Rogers,  33  O.  S,  537,  540 ;  Hager  v. 

2  Kennedy  v.  Thompson,  3  O.  C.  C,  Reed,  11  O.  S.  626,  635;  Clayton  v. 
446-7;  3  Blackstoue,  116,  Freet,  10  O,  S.  546. 

3  Sec.  4971;  51  V,  57.  5  Dixon  v.  Caldwell,  15  O.  S.  415; 
♦  Kloone  v.  Bradstreet,  7  O.  S.  33?-5 ;     Van  Buskirk  v.    Duniap,  2  W,  L.  it 

Neilson  v.  Fry,  16  0.  S.  552 ;  Goble    135-9. 


2  ACTIONS    UXDEK    THE    CODE.  [§  3. 

tion  or  a  bill  in  chancery,  according  to  the  nature  of  the  case 
as  shown  by  the  statement  and  proof  of  the  cause  presented.^ 
A  judgment,  when  presented  and  recorded,  is  in  fact  a  decree, 
conferring  the  same  relief  which  a  party  might  have  obtained 
in  a  court  of  chanc3ry,  provided  that  mode  of  relief  be  ap- 
propriate to  the  facts  of  the  case.- 

The  abolishment  of  the  distinction  between  actions  did  not 
affect  the  principles  of  law  and  equit}'',  but  only  changed  a 
portion  of  the  machinery  theretofore  used  in  administering 
the  same;  every  cause  of  action  invokes  the  law  or  chancer^'' 
powers  of  a  court  as  completely  as  did  the  separate  proceed- 
ings under  the  old  practice. 

Sec.  3.  Civil  action  embraces  Avhat.—  At  one  time  it  was 
considered  that  the  term  civil  action  embraced  only  such  cases 
as  were  known  as  actions  at  law  and  suits  in  equity,  and  that 
there  was  a  distinction  between  statutory  proceedings  and  a 
civil  action;  that  therefore  suits  in  partition,  dower,  divorce 
and  alimony,  haheas  corpus,  quo  warranto  and  mandamus, 
Avere  not  included  within  the  meaning  of  a  civil  action.^  This 
distinction  has  been  abandoned,  at  least  as  to  partition  pro- 
ceedings, which  is  now  regarded  as  a  civil  action.^ 

An  application  for  the  probate  of  a  will  is  not  included  in 
the  definition  of  an  action  or  suit.* 

The  code  commissioners  in  their  report  to  the  legislature 
said  that  a  civil  action  comprehended  every  proceeding  in  a 
court  theretofore  instituted  by  any  and  all  of  the  forms  abol- 
ished. Every  other  proceeding  will  be  something  other  than 
an  action,  namely  a  special  proceeding;  it  was  also  provided 
that  special  statutory  remedies  not  theretofore  obtained  by 
action  were  not  affected. 

An  attachment  proceeding  has  not  been  regarded  as  an  ac- 
tion but  only  a  provisional  remedy;"  nor  is  a  proceeding  by 
citation  against  an  administrator,'  or  to  vacate  a  judgment 

iHager  v.  Reed,  11  O.  S.  635 ;  Myers  Rush  v.  Rush,  29  O.   S.  440 ;  Linton 

V.  Miller,  2  VV.  L.  M  420.  v.  Laj'cox,  33  O.  S.  128.     And  so  is 

2  Kloone  v.  Bradstreet,  supra.  mandamus.     See  sec.  800,  post. 

3  Barger  v.  Cochran,  15  O.  S.  461.  5  Joseph  Hunter's  Will,  6  O.  S. 
See,  also.  Mack  v.  Bouner,  8  O.  S.  367 ;  501-2. 

Yaple"s  Pldg.,  p.  288;  Chinn  v.  Trust-  6  Watson  v.  Sullivan,  5  O.  S.  43;, 
ees,  32  O.  S.  236.  Harrison  v.  Howe,  9  O.  S,  388. 

<Stableton  v.  Ellison.  21  O.  S.  527;         •  Hoffman  v.  Mackall,  5  O.  S.  124. 


§§  4,  5,]  AuriONS    UNDER    THE    CODE.  3 

and  to  reinstate  a  cause  upon  the  docket  for  trial,  so  consid- 
ered,^ 

A  petition  impeaching  a  decree  for  fraud,  seeking  relief  not 
obtainable  by  re-trial,  is  regarded  as  a  civil  action  ;2  and  so  a 
p3tition  to  vacate  a  judgment  and  for  a  new  trial,  while  it  is 
a  special  statutory  proceeding,  as  distinguished  from  the  code 
civil  action,  must  be  deemed  a  civil  action  within  the  meanino- 
of  the  code  in  order  to  furnish  a  remedy.^ 

Sec.  4.  Legal  ami  equitable  actions  under  the  code.— 
Cases  occasionally  arise  in  which  it  is  difficult  to  determine 
whether  or  not  the  facts  call  for  relief  in  law  or  in  equity. 
The  books  abound  in  cases  along  or  near  the  vague  and  in- 
definite boundary  line  between  the  jurisdiction  of  courts  of 
law  and  equity,  in  which  attempts  have  been  made  to  define 
with  some  degree  of  precision  the  limit  of  such  jurisdiction, 
tinder  our  system  of  jurisprudence,  where  the  same  court  is 
vested  with  law  and  chancery  jurisdiction,  and  in  which  the 
distinction  between  actions  at  law  and  suits  in  equity  are 
abolished,  a  defendant  may  raise  an  objection  to  the  relief 
sought  before  final  judgment.  But  he  cannot  remain  silent 
until  he  has  been  defeated  in  an  action,  and  then  upon  pro- 
ceedings in  error  raise  the  question  that  the  suit  was  one  in 
equity  instead  of  an  action  at  law  and  vice  versa.* 

The  line  of  demarcation  between  the  kinds  of  actions  is 
marked  by  the  code  provision^  that  issues  of  fact  arising  in 
actions  for  the  recovery  of  money  only,  or  specific  real  or 
personal  property,  shall  be  tried  by  a  jury,  and  all  issues  of 
fact*  to  be  tried  by  the  court;  the  former  being  regarded  as 
the  legal,  and  the  latter  as  equitable  actions.  The  code  has 
not,  therefore,  changed  the  manner  of  trial  from  what  it  was 
before  its  adoption,  as  the  provision  as  to  what  issues  shall  be 
tried  by  a  jury  covers  all  the  issues  of  fact  in  the  various 
common-law  actions.' 

Sec.  5.  Parties^,  how  designated.— The  party  complaining 
shall  be  known  as  the  plaintiff,  and  the  adverse  party  as  the 
defendant.^ 

1  Taylor  v.  Fitch,  12  O.  S.  169.  6  0.  Code,  sec.  5130. 

2Coates  V.  Bank,  23  O.  S.  415.  ^O.  Code,  sec.  5131. 

3  Whitehead  v.  Post,  3  W.  L.  M.  195.  "  Bliss  on  Code  Pldg.,  sec.  10. 

<  Culver  V.  Rodgers,  33  O.  S.  542,  8  Q.  Code,  sec.  4972, 
and  cases  cited. 


4:  ACTIONS    UNDER    THE    CODE.  [§§  0,  7. 

Sec.  6.  Issues  under  code.— The  code'  abolished  what 
were  formerly  known  as  feigned  issues,  and  questions  of  fact 
not  put  in  issue  by  the  plaintiff  may  be  tried  by  a  jury  upon 
an  order  for  a  trial  stating  the  question  to  be  tried,  and  such 
an  order  shall  be  the  only  authority  necessary  for  a  trial,  or 
such  question  may  be  referred  in  the  same  way  to  one  or 
more  persons.- 

Sec.  7.  Au  action  is  commenced  when.—  An  action  is  re- 
garded as  having  been  commenced,  within  the  meaning  of  the 
code,*  at  the  date  when  service  has  been  made  upon  each  de- 
fendant, or  on  a  co-defendant  who  is  a  joint  contractor,  or 
otherwise  united  in  interest;  where  service  is  made  by  publi- 
cation, the  action  is  commenced  at  the  date  of  the  first  pub- 
lication, if  regularly  made.  That  an  action  shall  be  deemed 
to  have  been  commenced,  it  is  essential  that  a  summons  shall 
have  been  regularly  served,  and  that  there  be  no  irregularity 
or  cause  for  setting  the  same  aside.*  This  rule,  by  analogy  at 
least,  is  equally  applicable  to  the  prosecution  of  proceedings 
in  error,  which  are  not  commenced  until  the  petition  in  error 
is  filed  and  the  appearance  of  the  defendants  in  error  effected 
by  service  of  summons  or  otherwise,^ 

An  action  cannot  be  considered  properly  commenced  when 
one  of  the  parties  is  by  mistake  not  made  a  party  until  after 
the  limitation  prescribed."  It  is  specially  provided,  however, 
that  an  action  shall  be  deemed  commenced  when  there  has 
been  a  diligent  effort  to  procure  service,  if  followed  by  service 
within  sixty  days.' 

»0.  Code,  sec.  4973.  ingham  v.  Bank,  21  O.  S.    131.    See 

2  O.  Code,  sec.  4973.  sec.  1265.  l^ost. 

3  O.  Code,  sec.  4987.  *  Bonte  v.  Taylor,  24  O.  S.  628. 

*  Grady  v.  Gosline,  48  O.  S.  665.  '  O.  Code,    sec.    4988 ;  Lambert  v. 

SBowenv.  Bowen,  36  O.  S.  312;  Sample.  25  O.  S.  336 ;  Pollock  v.  Pol- 
Robinson  V.  Orr,  16  O.  S.  284 ;  Buck-    lock,  2  O.  C.  C.  140. 


CHAPTER  2. 


PARTIES. 


Sec.  14.  Joinder  of  parties  defendant. 

15.  One  suing  for  all. 

16.  Ordering  parties  brought  in. 

17.  Remedy   for   misjoinder  of 
parties. 


Sec.  8.  Real  party  in  interest 

9.  Trustee  of  an  express  trust 

10.  Action  by  officers. 

11.  When  wife  may  defend. 

12.  Insane  persons. 

13.  Joinder  of  parties  plaintiff. 

Sec.  $.  Real  party  in  interest.— The  codes  provide  that 
every  action  shall  be  prosecuted  in  the  name  of  the  real  party 
in  interest,  except  as  otherwise  provided  in  special  cases.^  It 
is  not  necessary  to  philosophize  upon  the  intention  of  this 
provision  to  abolish  the  common-law  rule  which  prohibited 
an  action  at  law  being  prosecuted  in  the  name  of  any  per- 
son other  than  the  original  obligee,  although  he  had  trans- 
ferred his  interest  therein  to  another,  as  the  system  has 
become  so  thoroughly  imbedded  in  American  jurisprudence, 
and  so  well  understood,  that  such  a  task  is  useless,  and 
there  are  those  who  have  made  the  philosophy  of  the  various 
branches  of  law  a  specialty.  The  scope  and  object  of  this 
work  being  entirely  practical  in  its  character,  nothing  further, 
therefore,  will  be  attempted  than  some  useful  illustrations. 
To  go  very  far  into  the  domain  of  illustrations  upon  the  sub- 
ject of  parties  would  be  to  swell  a  book  beyond  the  patience 
of  the  practitioner ;  and  yet,  being  an  essential  part  of  plead- 
ing, it  deserves  equally  as  much  attention  as  any  other 
branch.  The  manner  of  treatment,  though  differing  from 
that  pursued  by  others,  is  one  suggested  by  the  wants  of  the 
practitioner.  Only  the  general  principles  of  law  relating  to 
parties  are  treated  in  this  chapter,  and  parties  in  the  particular 
actions  are  discussed  in  their  respective  places.  This  is  be- 
lieved to  be  the  more  convenient.  The  principal  change 
wrought  by  the  code  was  the  repudiation  of  the  common  law, 
by  allowing  an  assignee  to  sue  in  his  own  name,  dispensing 

» O.  Code,  sec.  4993 ;  Pomeroy's  Code  Rem.,  sec.  124. 


PARTIES. 


u 


with  the  necessity  of  suing  in  the  name  of  the  original  assignor 
or  of  making  him  a  party.'  At  common  Law  it  was  neces- 
sary to  aver  that  an  assignment  was  made  with  the  consent 
of  the  owner,  though  snch  was  not  the  case  in  equity.  The 
purpose  of  the  code,  therefora,  was  to  assimilate  the  practice 
in  the  courts  of  law  to  that  which  prevailed  in  equity,  by  per- 
mitting the  real  party  in  interest  to  sue  in  his  own  name.- 

In  this  commercial  age  there  are  but  few  instruments 
which  are  not  assignable.  And  while  it  is  essential  that  a 
pleader  fully  understand  when  an  action  may  be  brought 
by  an  assignee,  no  review  of  the  question  will  here  be  at- 
tempted further  than  the  appended  note,  but  special  works 
should  be  consulted. **  The  assignment  should  be  in  writing, 
although  it  has  been  hsld  <-hat  a  person  holding  a  note  and 
mortgage  by  a  verbal  assignment  may  maintain  an  action 
thereon  in  his  own  name.*  Assignments  are  frequently  made 
for  purposes  other  than  the  transfer  of  actual  ownership, 
which  class  the  pleader  should  have  well  in  hand.  Reference 
is  made  to  those  instruments  which  are  transferred  to  another, 


1  Allen  V.  Miller,  11  O.  S.  374 :  Buck- 
ingham V.  Same.  86  O.  S.  63 ;  Whit- 
man V.  Keith.  18  O.  S.  134,  This  "is 
held  applicable  only  to  actions  and 
not  special  proceedings.  See  Pome- 
I'oy's  Code  Rem.,  sec.  125  and  note  1. 

2 McDonald  v.  Kueeland,  5  Minn. 
352.  It  is  not  necessary  under  the 
code  to  make  any  such  an  averment. 
Grain  v.  Aldrich,  38  Cal.  514. 

3  The  most  common  is  commercial 
paper.  An  action  may  be  brought 
by  an  assignee  of  an  open  account 
(Knadler  V.  Sharp,  36  la.  233);  or  of 
stock  in  a  corporation  (Railroad  Co. 
V,  Fink,  41  O.  S.  321) ;  or  of  a  claim 
of  a  principal  against  an  agent 
(Grant  v.  Ludlow,  8  O.  S.  1);  or  of  a 
reversion  of  a  leas"  (Masury  v.  South- 
worth,  9  O.  S.  340 ;  Smith  v.  Harrison, 
42  O.  S.  180);  or  a  contract  of  guar- 
anty (Bank  v,  Jones,  16  O.  S.  145) : 
or  to  pave  streets  (Ernst  v.  Kunkle.  5 
O.  S.  520) ;  or  of  a  right  of  an  officer 
to  his  fees  (Poi  tor  v.  Duiilap,  17  O.  S. 


591);  or  of  salary  (Insurance  Co.  v. 
Hessberg,  27  O.  S.  393).  An  execu- 
tory contract  for  services  can  be  as- 
signed by  an  employer  only  by  con- 
sent of  thp  employee.  Chapin  v. 
Long%vorth,  31  O.  S.  421.  Nor  can 
an  assignee  without  indorsement  for 
value  sue  as  against  an  equitable 
owner.  Osborn  v.  McClelland.  43 
O.  S.  2S4;  Hays  v.  Hnthorn.  74  N.  Y. 
486.  An  iudorser  of  notes  who  has 
paid  a  judgment  thereon,  and  taken 
an  assignment  of  a  right  of  action 
against  a  justice  of  the  peace  for  his 
failure  to  collect  the  same  from  tlie 
maker,  is  not  the  real  party  in  inter- 
est to  maintain  an  action  against  the 
justice,  but  the  right  exists  in  the 
holder  and  owner  of  the  notes. 
Dehn  v.  Heckmau,  12  O.  S.  181.  See 
Pomeroy's  Code  Rem.,  sec.  124  etseq., 
where  this  subject  is  thoroughly 
treated. 

^Earthol    v.    Bliiki;!.   34    la.     452; 
Moore  v.  Lowrey,  25  la.  336. 


§»•] 


PARTIES. 


to  which  there  is  also  annexed  some  collateral  agreement;  as, 
for  instance,  where  the  assignee  is  to  sue  and  collect  for  the 
owner  and  account  for  the  proceeds.  The  universally  ac- 
cepted construction  of  the  code  is,  that  the  assignee  in  such 
case  is  the  i)arty  in  interest  and  may  sue  in  his  own  name.' 
This  will  include  an  assignee  who  is  to  pay  some  indebtedness 
for  the  assignor,-  or  an  assignee  of  a  chose  in  action  in  which 
others  are  beneficially  interested.^ 

An  assignee  of  a  claim  for  damages  to  either  personal  or 
real  estate  may  sue.^  But  a  person  to  whom  a  note  is  trans- 
ferred by  mere  delivery  for  the  purpose  of  collection  cannot 
sue  in  his  own  name.^  Before  the  code  an  assignee  of  only 
part  of  a  demand  could  not  sue  thereon;"  but  now  he  may  sue 
and  obtain  relief  by.  making  the  assignor  a  party.'  And  the 
owner  may  intervene  to  protect  his  own  interests  in  the  action.^ 

An  assignee  of  a  judgment,  the  proceeds  of  which  are  to  be 
paid  to  several  persons,  is  nevertheless  the  real  party  in  inter- 
est, and  may  bring  an  action  thereon  without  joining  those 
interested  as  parties.^  And  so  is  the  assignee  of  a  judgment 
obtained  in  a  garnishee  process  the  proper  party  plaintiff  in 
an  action  against  the  garnishee."-     A  plaintiff  in  an  action  of 

'White  V.  Stanle\-,  29  O.  S.   423;     Daniel  v.  Pressler,  3  Wasli.  636;  Cur- 
Saulshury   v.  C'orwin.  40   Mo.   App.     tis  v.  Sprague,  51  Cal,  239. 
373;  Bruniback  v.  Oldham.  1  Idaho,        -Vimont   v.  Raih-oad   Co.,   64   la, 
709;  Young  v.  Hudson.  99  Mo.  102;     513;  Ginocchio  v.  Canal  &  M.  Co.,  67 
Allen  V.  Brown,  44  N.  Y.  228 ;  Sher- 
idan V.  Mayor,  68  N.  Y.  30 ;  Haysler 
V.  Dawson.  28  Mo.  App.  531  (1888),  an 
account;  Minn.  T.  M.  Co.  v.  Heipler, 
49  Minn.  395,  a  draft  taken   for  col- 
lection.    A  person  holding  the  legal 
title  of  a  note,  though  he  be  an  agent 
or  trustee,  and  liable  for  tlie  proceeds 
to  another,  is  the  proper  party  to 
sue,   although   the    defendant    may 


Cal.  493;  Walburn  v.  Chenault,  43 
Kan.  352. 

s  Allen  V.  Brown,  44  N.  Y.  228; 
Williams  v.  Brown,  2  Keyes.  480. 

*Hall  V.  Railroad  Co.,   1  Disn.  58. 

3  Nichols  V.  Gross,  26  O.  S.  425. 
Cf.  Eaten  v.  Alger.  47  N.  Y.  345. 

^Stanberry  v.  Smythe,  13  O.  S. 
495-500. 

"Grain  v.  Aldrich,  38  Cal.  514; 
make  such  defenses  thereto  as  exist  Lapping  v.  Duffy,  47  Ind.  51 ;  Allen 
against   the  real   party  in   interest     v.  Miller,  11  O.  S.  374-8. 


Cottle  V.  Cole.  20  la.  481 ;  Abell  Note. 
etc.  Co.  V.  Hurd,  52  N.  W.  Rep.  488 
(la.,  1892) ;  Minn.  T.  M.  Co.  v.  Heip- 
ler. 49  Minn.  395;  52  N.  W.  Rep.  33 
(1892);  Elmquist  v.  Markoe,  45  Minn. 
SC5 :  Young  v.  Hudson.  99  Mo.  102 ; 
Herron    v.    Cole.    25   Neb.    692;   Mc- 


SGradwohlv.  Harris.  29  Cal.  150. 

•'  Walburn  v.  Chenault.  43  Kan.  352 
(1890),  citing  Allen  v.  Brown.  44 
N.  Y.  228;  Williams  v.  Norton.  3 
Kan.  295. 

n>  Whitman  v.  Keith,   18  O.  S.  134. 


8  TAiCTIES.  [§  9. 

replevin  may  sue  in  his  own  name  on  a  redelivery  bond,  which 
is  made  to  an  officer,  as  the  real  part}''  in  interest;^  and  a 
partner  to  whom  his  copartner  has  assigned  a  partnership 
claim  may  sue  thereon  as  the  real  party  in  interest.^  A  de- 
fendant may  set  up  the  fact  that  the  plaintiff  is  not  the  real 
party  in  interest.  He  must  do  it,  however,  by  setting  forth 
the  facts  in  an  answer  like  other  defenses.'  And  the  right  of 
set-off,  counter-claim  and  defense  allowed  by  law  shall  not  be 
impaired.* 

Sec.  9.  Trustee  of  an  express  trust. —  There  are  three 
classes  of  exceptions  to  the  rule  that  the  real  party  in  interest 
shall  prosecute  an  action,  namely:  An  administrator,  execu- 
tor, guardian,  or  trustee  of  an  express  trust,  a  person  with 
whom  or  in  whose  name  a  contract  is  made  for  the  benefit  of 
another,  or  a  person  expressly  authorized  by  statute,  who 
may  sue  without  joining  with  him  the  person  for  whose  bene- 
fit it  is  prosecuted,  that  is,  the  real  party  in  interest;  and 
officers  may  sue  and  be  sued  in  such  name  as  authorized  b}'' 
law.^  A  trustee  of  an  express  trust  only  is  noticed  in  this 
section.''  The  Xew  York  code  has  defined  a  trustee  of  an  ex- 
press trust  as  a  person  with  whom,  or  in  whose  name,  a  con- 
tract is  made  for  the  benefit  of  another;^  and  it  was  not 
intended  to  limit  it  to  a  particular  class,  but  rather  to  enlarge 
its  sense.*  Under  this  provision  the  beneficiary  of  a  contract, 
or  he  for  whom  it  was  made,  though  not  named  therein,  may 
bring  an  action  thereon  in  his  own  name  as  the  real  party  in 
interest.^     And  this  is  so  where  the  contract  is  a  verbal  one.'* 

»  Kimball  v.  Bleick,  32  Pac.  Rep.  766.  Miller  v.  Florer,  15  O.  8.  148 ;  Gilder- 

-  Stuckey  v,  Fritsche,  77  Wis.  329  sleeve  v.  Burrows,  24  O.  S.  204.     As 

(1890).  to  negotiable  paper  see  chapter  on 

3  Curtis  V.   Gooding,   99    Ind.   45 ;  Bills  and  Notes. 
Hammond  v.  Earle,  58  How.  Pr.  426 :  ^  q.  Code,  sec.  495. 

Jackson  v.  Whedon,  1  E.  D.  Smith,  *>  See  ch.   35,   Executors  and  Ad- 

141 :    Coffin    v.    Hydraulic    Co.,    18  ministrators,  sec.  548 ;  ch.  45,  Infants, 

N.  Y.  S.  782 ;  aff'd,  136  N.  Y.  655.     It  sec.  672. 

is  too  late  on  error.    Giraldin  v.  Uow-  '^N.  Y.  R.  S.,  sec.  113  (449). 

ard,  103  Mo.  40.  s  Weaver  v.  Trustees,  CS  Ind.  112 

4  O.  Code.  sec.  4993.  See  a  very  com-  (1867). 

plete  exposition  of  this  provision  in  9  Emmitt  v.  Brophy,  42  O.  S.  82; 
Pomeroy's  Code  Rem.,  sec.  154  etseq.     Stevens  v.  Flaunagan.  131  Ind.  122; 

If  Grant  v.  Pendery.  15  Kan.  236;     Piano  Mfg.  Co.  v.  Burrows,  40  Kan. 
Harrison   v.   Simpson.   17  Kan.  508 ;     361. 
Center  v.    McQueston,  18  Kan.  476; 


§  9.]  TARTIES.  & 

The  provision  is  plain,  and  it  should  be  an  easy  matter  to  de- 
termine what  cases  fall  within  it.  It  does  not  apply  or  extend 
to  those  who  are  only  indirectly  or  incidentally  benefited.* 
Where  property  is  conveyed  to  trustees  of  a  corporation  for 
its  benefit,  the  corporate  body  may  bring  an  action  with  re- 
spect thereto.^  It  will  include  a  collector  of  a  claim,^  a  loan 
agent,*  a  person  to  whom  a  note  and  mortgage  are  given  for 
the  benefit  of  others,^  or  ^ne  who  holds  the  legal  title  to  a 
cause  of  action  as  agent  or  trustee,''  or  an  auctioneer,'  or  a 
factor,^  or  an  insurance  broker  holding  a  policy  for  himself 
and  others,  though  the  only  one  named,'  or  a  part  owner  of 
property  in  whose  name  a  policy  of  insurance  is  issued  for  the 
benefit  of  all  owners,^"  or  a  guest  at  an  inn  who  has  in  his  pos- 
session property  belonging  to  another  which  he  leaves  with 
the  innkeeper,'^  or  a  trustee  in  a  deed  of  trust  to  secure  a  debt,^- 
or  the  payee  of  a  note  who  is  acting  as  a  trustee  of  another, 
whether  the  beneficiary  be  dead  or  alive,'-^  or  an  agent  of  a 
syndicate  to  whom  a  note  is  made  payable,"  or  one  who  de- 
posits money  of  his  principal  in  bank  as  agent,'^  or  an  agent 
of  a  foreign  corporation  to  whom  a  subscription  note  is  made 
payable  as  agent.^'^     But  an  agent  who  makes  a  contract  in 

Crumbaughv.Kugler.30.S.  544,549;  and  cases  cited;    Cottle  v.  Cole,  20 

Bagaley  v.  Waters,  7  O.  S.  359,  367 ;  la.  481 ;  Rice  v.  Savery,  22  la.  470. 

Trimble  v.  Strother,  25  O.  S.  378,  381 ;  '  Minturn  t.  3Iain.  7  N.  Y.  220 

Thompson  t.  Same,  4  O.  S.  333 ;  Car-  8  Ladd  v.  Arkell,  37  N.  Y.  Super.  35. 

Italian  v.  Tousey,  93  Ind.  561 ;  Leake  » Insurance  Co.  v.  "Wilson,  6  O.  S. 

T.  Ball,  116  Ind.  214 :  Hewitt  v.  Young,  553. 

82  la.  224 ;  Ellis  v.  Harrison,  104  Mo.  i*'  Knight  v.  Insurance  Co.,  26  O.  S. 

270 ;  16  S.  W.  Rep.  198  (1891) ;   An-  664. 

thony  V.  Herman,  14  Kan.  494 ;  Bren-  "  Arcade  Hotel  Co.  v.  Wiatt,  1  O. 

ner  v.  Luth,  28  Kan.  581.  C.  C.  55;  S.  C,  13  W.  L.  B.  294;  Kel- 

1  Burton  v.  Larkin,  36  Kan.  246.  logg  v.  Svveenej',  1  Lans.  397. 

2  Church  T.  Branham,  90  Cal.  22;  12  Gardner  v.   Armstrong,    31   Mo. 
27  Pac.  Rep.  60  (1891).  535. 

3Noe  V.  Christie,  51  N.  Y.  270.  is  Beck  v,  Haas,  31  Mo.  App.  180 

4  Consolidated  B.  Wire  Co.  V.  Pur-  (1888);    Goodnow    v.   Litchfield,   63 

cell.  48  Kan.  267  (1892 1;  Stillwell  v.  la.  275. 

Hainm,  97  :M>.  579  (1888).  '*  Coffin  v.  G.  R  Hydraulic  Co.,  136 

sLundberi    v.    Elevator    Co.,    42  N.  Y.  655 ;  32  N.  E.  Rep.  1076. 

Minn.  37 ;  43  N.  W.  Rep.  685  (1889) ;  15  McLaughlin  v.  Bank,   43  N.  W. 

Hays  V.  Gas  Light  &  Coal  Co.,  29  Rep.  715  (Dak..  1889). 

O.  S.  330.  i«  Considerant  v.  Brisbane,  22  N.  Y. 

6  Cassidy  v.  Woodward,  77  la.  354,  389  (1860> 


lU  PARTIES.  [§   10. 

the  name  of  his  principal  is  not  in  any  sense  a  person  with 
whom  a  contract  is  made  and  cannot  sue  thereon.^  Nor  can 
he  sue  in  his  own  name  upon  an  implied  liability  to  his  prin- 
cipal,^  although  as  shown  by  the  foregoing  illustrations  he 
may  sue  upon  express  contracts  made  for  the  benefit  of  an- 
other,'' in  which  case  he  need  not  join  his  beneficiary.*  But 
members  of  a  township  board  of  health  are  not  within  the 
provision  under  consideration  so  as  to  enable  them  to  sue  in 
their  own  names  to  recover  money  for  the  use  of  the  board.'' 
And  in  an  action  against  a  trustee  for  a  debt  for  which  he  is 
personally  liable,  the  beneficiaries  are  not  necessary  parties.^ 
Sec.  10.  Action  by  officers. —  Officers  may  sue  and  be  sued 
as  is  provided  by  law."  Commissioners  of  a  county,  when  a 
cause  of  action  for  the  use  of  the  county  arises  out  of  a  sub- 
ject-matter within  their  control,  may  sue  thereon  in  their  own 
name.*  They  may  bring  suit  on  the  bond  of  a  county  treas- 
urer.^ They  are  not  necessary  parties  to  be  joined  in  an  ac- 
tion on  a  recognizance  brought  in  the  name  of  the  state;  ^^  nor 
can  they  be  sued  in  their  corporate  capacity  for  damages  for 
private  injury  to  property  caused  by  their  negligence,"  or 
held  personally  responsible.'-  A  master  commissioner  may 
sue  to  recover  the  purchase-price  of  real  estate  sold  by  him,'^ 
and  township  trustees  may  sue  to  recover  a  statutory  pen- 
alty for  obstructing  a  highway,'*  or  for  the  use  and  occupa- 
tion of  township  lands; ''  or  a  sheriff  may  prosecute  an  action 

'Ferguson  v.   McMahon,  52  Ark.  bridge  injured  by  a  railroad  compan}'. 

433  (1889).  Perry  Co.  v.   Railroad  Co.,  43  O.  S. 

•■2  Palmer  v.  Ptailroad  Co.,  11  N.  Y.  451:  R.  S.,  sec.  86:3. 

376-390.  s  Hunter  v.  Commissioners.  10  O.  S. 

3Ruckman  v.  Pitcher,  20  N.  Y.  9.  515;  R.  S..  sec.  1133.     See  R.  S.,  sec. 

4  Considerant  v.  Brisbane,  22  N.  Y.  845 ;  78  O.  L.  121.  To  establish  bound- 
389,  and  cases  cited  generally  supra,  aries.  R.  S.,  sec.  808. 

5  Sanderson  v.  Gordo  Co.,  80  la.  89 ;  lo  Gamble  v.  State,  21  O.  S.  183. 

45  N.  W.  Rep.  560.  i'  ("omTuissiouers  v.  Mighels,  7  O.  S. 

6  Connolly  V.  Lyons,  82  Tex.  664.        109;    Grimwood   v.    Commissioners, 
'  O.  Code,  sec.  4995.  23  O.  S.  600. 

8 Commissioners  v.  Noyes,  35  O.  S.       '^Thomas  v.  "Wilton.  40  O.  S.  516; 

201;  Shanklin  v.  Commissioners,  21  Gregory  v.  Small,  39  O.  S.  346;  Stew- 

O.  S.  575;  Overseers  of  Poor  V.Sam  e,  art  v.  Southard,  17  O.  402;  Ramsey 

18  Johns.  407 ;  Supervisors  v.  Stim-  v.  Riley,  13  O.  157. 
son,   4    Hill,    136.     Suit    to    recover       "  Mayer  v.  Wick,  15  O.  S.  548. 
money  due  county  (15  O.    15) ;  and       '••  Higgins  v.  Grove,  40  O.  S.  521. 
for    expenses   paid    in    repairing    a       ^■'  Wilson  v.  Trustees,  8  O.  174-9. 


§§  11-13.]  rAiniEs.  11 

against  a  surety  on  a  replevin  bond,'  or  for  conversion  of  at- 
tached property,-  or  for  the  price  of  property  sold  at  judicial 
sale,'  except  after  confirmation  and  assignment  of  his  right 
of  action  to  the  creditor.*  But  a  township  clerk  cannot  sus- 
tain an  action  against  a  township  treasurer  for  money  had  and 
received.^  When  an  action  is  brought  bv  an  officer  it  should 
be  in  his  individual  name,  with  his  official  designation  and 
averments  of  official  character." 

Sec.  11.  IVlieu  wife  may  defend. —  When  husband  and  wife 
are  sued  together,  the  wife  may  defend  for  her  own  right ; 
and,  if  the  husband  neglect  to  defend,  she  may  also  defend 
for  his  right.'  By  recent  changes  in  the  status  of  a  married 
woman,  she  may  sue  and  be  sued,  the  same  as  if  unmarried. 
The  only  portion  of  the  provision  of  the  code  just  stated 
applicable  is,  that  she  may  defend  for  her  husband  when  he 
neglects  so  to  do,^  in  which  case  she  may  make  a  complete  de- 
fense as  to  both.^ 

Sec.  12.  Insane  persons. —  A  defense  by  an  insane  person 
must  be  by  his  legally  appointed  guardian,  or  bj"  a  trustee,  for 
the  suit,  appointed  by  the  court.  If  he  becomes  insane  after 
the  action  is  instituted,  it  will  thereafter  be  prosecuted  or  de- 
fended by  his  guardian  or  trustee.^''  Such  a  person,  though 
incapable  of  defending  for  himself,  is  still  civilly  liable,  and 
should  be  brought  into  court  before  any  action  can  be  taken," 
although  a  judgment  rendered  against  him  without  the  in- 
tervention of  a  guardian  or  trustee  is  not  necessarily  void.'- 
The  guardian  of  a  lunatic  must  sue  in  his  own  name.'^ 

Sec.  13.  Joinder  of  parties  plaintiff. —  "All  persons  hav- 
ing an  interest  in  the  subject-matter  of  the  action  and  in  ob- 
taining the  relief  demanded  may  be  joined  as  plaintiffs,  except 
as  otherwise  provided,"  is  the  provision  of  the  code.^*     It  is 

1  Greer  v.  Halstead.  41  O.  S.  591 ;  7  o.  Code.  sec.  49!)7. 

■Cheseldiue  v.  Mathers.  '2  Disu.  592.  ''R.  S.,  sec.  3112  et  seq. 

2Schaeffer  v.  Marieiuhal.  17  O.  S.  9  Lowe  v.  Redgate,  42  O.  S.  339. 

183.  ""  O.  Code,  sees.  5000-2. 

3Galpin  v.   Lamb,   29  O.   S.   529:  n  Sturgess  v.  Longworth.  1  O.  S.  545. 

McKee  v.  Liueberger,  69  N.  C.  217.  550. 

*  Mayer  v.  Wick.  15  O.  S.  548.  i- Johnson  v.  Pomeroy.  31  O.  S.  247. 

5  Mount  V.  Lakeman,  21  O.  S.  643.  i^Wageman  v.  Brown.  1  "VV.   L.  J. 

6  Pomeroy's  Code  Rem.,  sec.    179.  454. 

See  chapter  on  Taxation.  1*0.  Code,  sec.  5005. 


12  PARTIES.  [§   14. 

Otherwise  provided  tliat  ''  if  the  consent  of  one  who  should 
have  been  joined  as  plaintiff  cannot  be  obtained,  or,  if  he  is 
insane,  and  the  consent  of  his  guardian  cannot  be  obtained,  or 
he  has  no  guardian,  and  that  fact  is  stated  in  the  petition,  he 
may  be  made  a  defendant."  ^  Persons  whose  interests  depend 
upon  the  same  right,  and  who  may  be  affected  in  the  same 
manner,  may  be  joined.-  But  a  demurrer  to  an  insufficient 
answer  will  be  sustained  even  though  the  petition  shows  a 
cause  of  action  in  favor  of  but  one  of  several  plaintiffs  who 
are  joined.* 

Sec.  14.  Joinder  of  parties  (lefeiidaut. —  Any  person  may 
be  made  a  defendant  who  has  or  claims  an  interest  in  the 
controversy  adverse  to  the  plaintiff,  or  who  is  a  necessary 
party  to  a  complete  determination  or  settlement  of  a  question 
involved.*  There  are  necessary  and  proper  parties.  Where 
a  party  will  be  directly  affected  by  a  decree  he  is  an  indis- 
pensable or  necessary  one.^  Proper  parties  are  those  who, 
though  not  absolutely  essential,  ought  to  be  made  parties  so 
that  all  interests  may  be  determined.  The  important  ques- 
tion to  decide  in  making  parties  defendant  is  whether  an  ob- 
ligation is  joint  or  joint  and  several.  In  the  absence  of  any 
special  words  so  indicating,  a  liability  is  usually  regarded  as 
joint,  and  a  several  one  where  the  words  "'  we  jointly  and  sev- 
erally promise"  are  used.^  These  questions. will  be  found  itt 
special  chapters.  It  may  here  be  stated  that  one  or  more 
of  the  persons  severally  liable  on  an  instrument  may  be  in- 
cluded in  the  same  action  thereon.^  But  where  the  only 
remedy  is  a  joint  suit  against  obligors,  it  is  error  to  render 
judgment  against  one  and  allow  the  action  to  proceed  against 
others,*  although  such  a  course  may  be  taken  where  it  appears 
from  the  pleadings  that  a  several  judgment  will  be  proper.** 
This  abrogates  the  common-law  doctrine  that  the  death  of 

-  O.  Code,  sec.  5007.  ^  See   Pomeroy"s  Code  Rem.,  sec. 

2  Creed  v.  Bank,  1  O.  S.  6 ;  Catlin  271,   and  see  chapter  on   Bills  and 
V,  Wheeler,  49  Wis.  519.  Notes. 

3  Rothweiler  v.  Ryan,  -i  O.  C.  C.  338.  '  O.  Code,  sec.  5009. 

*0.  Code,  sec.  5006.  SAucker  v.  Adams,  23  O.  S.  543; 

5  Board  v.  Walbridge,  38  Wis.  179-  Daugherty  v.  Walters,  1  O.  S.  201-3. 

88;  Williams  v.  Bankhead,  19  Wall.  ^'Hempy  v.  Ransom,  33  O.  S.  312;. 

563.  Oliver  v.  Gilmore,  52  Fed.  Rep.  562 


§§  15-17.]  PARTIES.  13 

one  of  several  joint  makers  of  an  obligation,  extinguishes  all 
remed}'-  at  law  against  his  estate.^ 

Sec.  15.  Oi»e  suing  for  all. —  When  the  question  is  one  of 
common  or  general  interest  to  many  persons,  or  when  the 
parties  are  numerous,  and  it  is  impracticable  to  bring  them 
all  before  the  court,  one  or  more  may  sue  or  defend  for  the 
benefit  of  all.-  The  general  rule  that  all  parties  must  be 
united  is  only  departed  from  when  it  is  inconvenient  or  im- 
possible to  comply  with  it.*  When  parties  falling  under  this 
rule  are  divided  in  classes,  the  one  ?uing  can  only  act  for  those 
of  his  own  class.* 

Sec.  16.  Ordering  parties  brought  in. —  The  court  is 
authorized  to  determine  any  controversy  between  the  parties 
before  it  when  it  can  be  done  without  prejudice  to  the  rights 
of  others,  or  by  saving  their  rights ;  but  when  this  cannot  be 
done  without  the  presence  of  other  parties,  the  oouBt  may 
order  them  brought  in,  or  dismiss  the  action  without  preju- 
dice.' If  the  rights  of  the  parties  not  before  the  court  must 
be  determined  before  the  rights  of  those  who  are  already  par- 
ties can  be  adjusted,  then  it  becomes  an  absolute  judicial  duty.® 
But  if  it  is  not  essential  that  other  parties  be  brought  in,  then 
it  cannot  be  done  against  the  will  of  the  plaintifp.'^ 

Sec.  17.  Remedy  for  misjoinder  of  parties. —  The  remedy 
for  a  misjoinder  of  parties  pointed  out  by  the  code  is  by 
demurrer;"^  but  objection  to  misjoinder  or  non-joinder  not 
appearing  on  the  face  of  the  petition,  according  to  some  author- 
ities, cannot  be  raised  by  a  general  demurrer,  but  must  be  by 
answer.^    The  demurrer  to  raise  the  question  of  parties  must 

J  Burgoyne  v.  Insurance  Co.,  5  O.  S.  ^  o.  Code.  sec.  5013. 

586;  Weil  v.  Guerin,  43  O.  S.  302.  epomeroy's  Code  Rem.,  sec.  419. 

2  0.  Code,  sec.  5008;  Upington  v.  "Chapman  v.  Forbes.  123  N.  Y. 
Oviatt,  24  O.  S.  232 ;  Quinlan  v.  Myers,  5o3 ;  29  N.  E.  Rep.  3 ;  Pomeroy's  Code 
29  O.  S.  500-8.    See  ch.  86,  Taxes  Rem.,  sec.  420. 

sec.  1175 ;  ch.  83,  Stock  &S.,  sec.  1151;  »0.  Code,  sec.   5062.     See  sec.  98, 

Alexander  v.  Gish,  88  Ky.  13  (1888),  j^ost 

holders  of  county  bonds.  » Creashaw  v.  Ullraan,  20  S.  W.  Rep. 

3  Board  v.  Walbridge,  38  Wis.   188  1077  (Mo.,  1893) ;  McFadden  v.  Seliill, 

4  Quinlan  V.  Myers,  29  O.  S.  500-8;  84  Tex.  77  (1892);  Williams  v.  Brad- 
Macon  R.  R.  Co.  v.  Gibson,  85  Ga.  2 ;  bury,  9  Tex.  487  ;  Railroad  Co.  v.  La 
Pomeroy's  Code  Rem.,  sec.  388 ;  1  Gierse,  51  Tex.  200.  A  demurrer  for 
Daniell's  Ch.  Pr.  234-7 ;  Hawes  on  misjoinder  will  not  lie  unless  the  peti- 
Parties,  sec,  92 :  Story's  Eq.  PL,  sec.  94.  tion  shows   the   defect  on   its  face. 


u 


PARTIES. 


[§n. 


be  special;^    and  unless  obiection  is.  made   by  demurrer  or 
answer  it  is  waived.- 


Carico  v.  Moore,  29  N.  E.  Rep.  928 
(Ind..  1892):  Tatum  v.  Rosenthal,  30 
Pac.  Rep.  186  (Cal.,  1892). 

^  Whipperman  v.  Dunn,  124  Ind. 
349;  24  N.  E.  Rep.  1045  (1890). 

-Leucke  v.  Tredway,  45  Mo.  App. 
507;  Hurd  v.  Simpson,  47  Kan.  245; 
26  Pac.  Rep.  465  (1891);  Ostrander  v. 
Weber,  114  N.  Y.  95;  Christian  v. 
Bowman,  49  Minn.  99 ;  51  N.  W.  Rep. 


663(1892\  Where  a  defect  appears 
on  face  of  petition  it  is  waived  un- 
less demurred  to.  Bank  v.  Gilpin,  105 
Mo.  17;  16  S.  W.  Rep.  524  (1891); 
Melsheimer  v.  Honimel,  15  Colo.  475 ; 
24  Pac.  Rep.  1079 ;  Railroad  Co.  v.  Kin- 
dred, 43  Kan.  134;  23  Pac.  Rep.  112; 
Coulsou  V.  Wing,  43  Kan.  507.  See 
sec.  106,  post. 


CHAPTER  3. 


JOINDER  OF  ACTIONS. 


Sec.  26.  Contracts,    express    or    im- 
plied. 

27.  Injuries  to  person  or  prop- 

erty. 

28.  Injuries  to  character. 

29.  Recovery  of  personal  prop- 

erty with  damages. 

30.  Recovery   of    I'eal   property 

with  damages. 

31.  Claims  against  trustees. 
33.  Actions  to  enforce  liens. 

33.  Remedy  for  misjoinder. 

34.  Venue    and    parties   in  ac- 

tions joined. 


Sec.  18.  Joinder  of  actions  generally. 

19.  A  single  cause  of  action. 

20.  Separately  stating  and  num- 

bering causes  of  action. 

21.  Consistency  in  causes  united. 
23.  Single   recovery  upon    two 

grounds    further    consid- 
ered. 

23.  Same  transaction,  or  trans- 

action     connected      with 
same  subject  of  action. 

24.  Same     transaction     contin- 

ued —  Actions    held  join- 
able. 

25.  Same    transactions    contin- 

ued —  Actions    held    not 
joinable. 


Sec.  18.  Joinder  of  actions  generally. —  The  code^  pro- 
vides that  several  causes  of  action  may  be  united  in  the  same 
petition,  whether  they  are  such  as  have  formerly  been  de- 
nominated legal  or  equitable,  or  both,  when  they  come  within 
the  provision  of  any  of  the  enumerated  classes,  which  will  be 
treated  separately  in  their  order  in  this  chapter. 

A  plaintiff  having  separate,  distinct  and  independent  claims 
cannot  be  cornpellad  to  unite  them  in  a  single  action.^ 

Causes  of  action  to  be  joined  must  be  existing  and  not 
prospective.^ 

Sec.  19.  A  single  cause  of  action. —  The  general  rule  is 
that  each  contract  or  wrong  constitutes  but  one  cause  of  ac- 
tion, and  that  where  there  are  several  breaches,  or  losses, 
there  is  but  one  cause  of  action.* 

It  is  a  rule  too  well  understood  to  warrant  the  citation  of 


1  Sec.  5019. 

•-'  Merrill  v.  Lake,  10  O.  373. 

•'  Weinland  v.  Cochran,  9  Neb.  480. 


4  Bliss   on   Code  Pldg.,    sec.    118; 
Commissioner  v.  Plumb,  20  Kan.  147. 


16  JOINDER   OF    ACTIONS.  [§  19. 

authority,  that  a  party  having  but  one  demand  or  cause  of 
action  cannot  divide  and  split  it  and  bring  suits  upon  each, 
but  is  limited  to  one  recovery.  He  may  elect  to  sue  upon 
one  ground,  or,  if  there  be  several  reasons  or  grounds  for  re- 
covery, they  may  be  united,  but  the  single  claim  cannot  be 
split.i 

While  it  is  well  settled  that  an  indivisible  demand  cannot 
be  separated  and  collected  by  several  actions,  yet  where  there 
is  an  agreement  between  parties  that  an  account  for  goods 
sold  for  each  month  shall  be  due  and  payable,  such  monthly 
account  constitutes  a  separate  demand  for  which  recovery 
may  be  had,  and  will  not  operate  as  a  bar  to  an  action  for  an- 
other month.- 

In  an  action  for  false  representation  in  the  sale  of  sheep,  a 
petition  containing  averments  that  representations  were  made 
that  the  sheep  were  sound  when  they  were  not,  and  also  that 
they  were  turned  into  a  field  with  other  sheep,  thereby  in- 
fecting other  sheep  and  injuring  the  pasture,  constitutes  but 
one  cause  of  action ; '  and  so  with  a  charge  that  a  defendant 
entered  a  dwelling  and  removed  the  roof,  thereby  exposing 
the  family  and  property  to  the  weather :  *  or  a  claim  for  stat- 
utory damages  and  costs  of  protest  on  a  bill  of  exchange;*  or 
items  on  a  running  account  for  merchandise;^  or  a  claim  for 
loss  to  a  person  of  his  wife's  services  and  expenditure  by  him 
of  means  and  labor  in  healing  and  caring  for  himself  and 
children,  being  the  result  of  the  same  negligent  act ; "  or  dif- 
ferent acts  of  fraud  in  obtaining  payment  of  many  different 
fraudulent  claims  at  different  times  in  pursuance  of  an  al- 
leged conspfracy;^  or  in  conversation  in  which  slanderous 

iDulaney  V.  Payne,  101  111.  325(1882) ;  ^  Wilcox  v.  McCoy,  21  O.  S.  655. 

8  W.  L.  B.  96 ;   Upjobu  v.  Ewing,  ^  Brown  v.  Lake,  29  O.  S.  64. 

2  O.  S.  13 ;  Railroad  Co.  v,  Nichols,  5  Summit    Co.   Bank  v.   Smith,   1 

54  111.  464 ;  Hazard  Powder  Co.  v.  Handy,  575, 

Viergutz,  6  Kan.  471;  Bliss  on  Code  « Stevens  v.  Lockwood,  13  Wend. 

Pldg.,  sees.  118-165.     For  a  more  full  646. 

discussion  see  Bendernagle  v.  Cocks,  '  Railroad  Co.   v.  Chester,  57  Ind. 

19  Wend.  207 ;  Secor  v.  Sturgess.  16  297. 

N.  Y.  548;  Mills  v.  Garrison,  3  Keyes,  ^  People  v.  Tweed,  63  N.  Y.   194; 

40.  5  Hud,  353. 

^Beck  V.  Devereaugh,  9  Neb.  109. 
See  Parris  v.  Hightower,  76  Ga.  631. 


§  20.]  JOINDKR    OF    ACTIO.NS. 


17 


words  were  used ; '  or  a  claim  for  services,  a  portion  of  wliiJi 
are  rendered  to  a  firm  of  which  the  defendant  is  the  surviving 
partner,  and  the  other  portion  under  the  same  contract  to  the 
defendant  alone; 2  or  a  claim  for  damages  for  the  wrongful 
dismissal  of  a  person  from  employment,  and  for  wages  earned 
during  the  term  of  emplo^^ment  ;^  or  an  action  to  recover  in- 
stalments of  an  illegal  and  void  assessment  paid,-*  —  may  all  be 
treated  as  a  single  cause  of  action.  But  a  claim  for  damages 
resulting  from  injuries  to  personal  or  real  estate  occurring 
prior  to  the  assignment  thereof  to  an  assignee,  and  a  claim 
for  damages  arising  from  the  same  source  subsequent  to  such 
an  assignment,  constitute  a  separate  cause  of  action,  and 
should  be  separately  stated  and  numbered;*  and  so  a  peti- 
tion which  states  a  contract  for  the  sale  and  delivery  of 
goods  to  be  delivered  in  lots  at  different  times,  alleging  two 
breaches,  one  that  those  delivered  did  not  correspond  in  qual- 
ity with  the  terms  of  the  contract,  the  other,  that  the  portion 
contracted  for  were  not  delivered  at  all.*^ 

Sec.  20.  Separately  stating  and  uuinberiiig  causes  of  ac- 
tion.—When  the  petition  contains  more  than  one  cause  of 
action,  each  cause  must  be  separately  stated  and  numbered.^ 
Artificial  pleading  having  been  abolished,  a  plaintiff  having 
but  one  cause  of  action  should  state  the  facts  without  repeti- 
tion. He  is  not  permitted  to  state  them  in  different  form,  or 
to  so  subdivide  them  as  to  present  two  or  more  distinct  and 
fictitious  causes  of  action.  The  facts  should  be  set  forth  as 
they  actually  occurred,  and  the  same  cause  of  action  cannot 
be  stated  in  different  forms  as  so  many  distinct  causes  of  ac- 
tion.^ 

The  object  of  this  provision  is  not  only  to  preserve  as  far 
as  practicable  the  legal  distinction  between  causes  of  action 

iCracraftv.  Cochran,  IG  la.  BOl.  R.   &   JL   G40;  Cinciuuati,   N.  O.   & 

2Butler  V.  Kirby,  53  Wis.  188.  T.  P.  Ry.  v.  Bank,  1  Ohio  C.  C.  203. 

8 Perry  v.  Dickerson.  85  N.  Y.  345.  Duplicate  statements  for  the  same 

4  Hic-gins  V.  Peltun.  4  W.  L.  B.  751.  cause  of  action  are  not  absoUitely  pro- 

5 Fall  V.  Raihoad  Co.,  1  Disn.  58.  hibited ;  they  are  permissible  where 

6  Work  V.  Mitchell,  1  Disn.  506.  the  party  cannot  anticipate  what  the 

7  0  Code,  sec.  5061.  evidence  may  be,  so  as  to  go  to  trial 
ssturgessv.  Burton,  80.  S.  215  ;Fer-  on  a  single  statement.     Cramer   v. 

guson  V.  Gilbert,  16  O.  S.  88 ;  Bliss  on     Oppenstein,  16  Colo.  Mi. 
Code  Pldg.,sec8.  118.  110;   Pomeroy's 
o 


18  JOINDKK    OF    ACTIOXS.  [§  20. 

in  a  petition,  but  to  enable  a  defendant  to  answer  fully,  defi- 
nitely and  clearly,  that  the  facts  alleged  may  be  denied  or 
admitteil,  and  the  court  readily  understand  the  principal 
points  in  controversy.^  The  causes  of  action  which  are  re- 
quired to  be  specifically  stated  and  numbered  are  such  as  by 
law  will  entitle  the  plaintiff  to  prosecute  separate  actions 
therefor.'  Where  a  single  cause  of  action  is  stated  separately 
or  in  two  counts,  as  at  common  law,  the  plaintiff  may  be  re- 
quired by  motion  to  elect  upon  which  he  will  proceed,  as  he 
cannot  frame  one  count  so  as  to  meet  one  construction,  and 
a  second  count  to  meet  another  view; ^  or  the  court  may  upon 
objection  treat  the  additional  action  as  mere  surplusage.* 
But  where  two  causes  of  action  are  properly  joined  in  a 
pleading,  but  are  not  separately  stated  or  numbered  as  re- 
quired bv  law,  objection  should  be  made  thereto  by  motion 
to  make  the  petition  definite  and  certain.  A  defendant  who 
does  not  so  object,  but  answers  the  two  causes  and  pro- 
ceeds to  trial  thereon,  is  considered  to  have  waived  the  in- 
formality. He  cannot  on  trial,  under  a  general  denial,  in- 
sist upon  a  ground  of  defense  which,  to  have  been  avail- 
able to  him,  he  should  have  objected  to  uniting  the  causes 
of  action  without  properly  stating  and  numbering  them.^ 
This  irregularity  can  be  reached  only  by  motion,^  although 
the  court  may  upon  its  own  motion  require  a  plaintiff  to  sep- 
arately state  and  number  several  causes  of  action  contained 
in  one  petition."     A  demurrer  is  not  the  proper  remedy  to 

1  Works  V.  Miicliell,  1  Disn.  506.  v.  EdwarJs.  11  How.  Pr.  iOl ;  Cincin- 

■''Sturge.ss  v.  Burton,  supra;  Globe  uati,  etc.  Ry.  v.  Bank,  1  O.  C.  C.  203. 
Rolling  Mill  Co.  v.  King,  2  C.  S.  C.  R.        « Ferguson  t.  Gilbert,  16  O.  S.  88- 

21 ;  Maxwell's  CodePldg.,  p.  343 ;  Pike  91 ;  Bliss  on  Code  Pldg.,  sec.  119, 
V.   Van   Woruier,   5  How.  Pr.   171;        ^jicKinney  v.  McKinney,  8  O.  S. 

White  V.  Cox,  46  Cal.  169;  Mooney  v.  423:  Freer  v.  Denton,  61   N,  Y.  49'i; 

Kennett.    19  Mo.  551;  Hathaway  v.  Globe  Rolling   Mill^  Co.   v.   King,  2 

Railroad  Co.,  2  W.  L.  M.  481 ;  Fern  C.  S.  C.  R.  21 :  Sentiiiel  Co.  v.  Thoaip- 

V,  Vanderbilt,  13  Abb,  Pr,  72:  Lackey  son,  38  Wis.  489:  Hathaway  v.  Rail- 

V.  Vand.rbilt,  10  How,  Pr.  155.  road  Co,,  2  W,  L.  M.  481,  482;  Works 

sSturgess  v.  Burton,  sxpra:  Fern  v.  Mitchell,  1  Disn,  506,     See  as   to 

V,    Vanderbilt,    supra;    Hillnian    v.  waiver,    Lane    v.    Wheelwright,   23 

Hillman.   14  How.  Pr.  456;  11  Am.  N,  Y.  Supp.  576, 

&  Eng.  Eucy,  of  Law,  989:  Keens  6  Hartford  r,  Bennett,  10  O.  S,  441. 
V,  Gaslin,  24  Neb,  310  (1888;;  Young        -Bailey  v,  Hugh.o,  35   O,  S.   597, 

001, 


§  2<).]  JOINDER    OF    ACTIONS.  19 

reach  such  matters,'  arnl  a  general  demurrer  to  each  paragraph 
is  not  well  taken  if  the  pleading  as  a  whole  states  a  good 
cause  of  action,  although  the  omission  to  state  them  in  sep- 
arate counts  does  not  necessarily  deprive  the  defendant  of  his 
right  to  demur.-  Xor  can  an  objection  be  by  motion  to  dis- 
miss the  action,  or  for  judgment  upon  the  pleadings.'  Al- 
though a  petition  upon  an  ordinary  account  may  contain 
allegations  which  would  properly  constitute  two  causes  of 
action,  as  for  money  had  and  received,  or  money  loaned,  and 
for  cash  advanced  to  another  or  third  person,  the  proper 
practice  is  to  make  a  motion  to  require  the  pleader  to  sepa- 
rately state  and  number  the  causes,  and  not  to  strike  the  alle- 
gations from  the  petition  as  to  one  cause  of  action,  and 
dismiss  as  to  the  otlier.*  And  a  petition  praying  for  damages 
in  the  nature  of  a  trespass,  and  also  for  an  injunction  in 
equity,  should  be  separately  stated  and  numbered;®  or  an  ac- 
tion on  an  account,  and  an  action  in  the  same  petition  asking 
the  enforcement  of  a  mechanic's  lien  securing  the  sarae;^  or  an 
action  for  damages  for  injury  to  personal  or  real  estate  sus- 
tained by  a  lessor  before  conveyance  to  a  lessee,  and  for 
damages  arising  after  purchase  by  the  lessee;^  or  an  action 
by  the  heirs  of  a  deceased  shareholder,  in  what  is  known  as 
a  syndicate,  against  trustees  in  whom  the  management  is 
placed,  charging  them  with  mismanagement  of  their  trust  and 
failure  to  properly  account  for  sales  by  them  made,  and  also 
praying  for  a  partition  and  an  accounting;^  or  where  a  peti- 
tion alleges  two  breaches  of  a  contract  for  the  sale  or  deliv- 
ery of  g'oods,  one  that  those  actually  delivered  were  not  of 
the  quality  required  by  the  contract,  the  other  that  a  portion 
of  those  contracted  for  were  not  delivered  at  all.-*    The  same 

1  Prows  V.  Insurance  Co.,  3  C.  S.     523;    Spaulding  v.    Saltiel,  18  Colo. 
C.  R  14:  Globe  Rolling  ilill  Co.  v.     86:  81  Pac.  Rep.  486  (1892). 

King,   2  C.  S.   C.  R   21 ;   Bailey  v.  "  .McKemy  v.  Goodall,  1  O.  C.  C.  23. 

Hughes,  supra.     Cf,  Lane  v.  Wheel-  ^  jjathaway  v.  Springfield,  etc.  Ry. 

Wright,  23  N.  Y.  Supp.  576.  Co.,  3  W.  L.  M.  481. 

2  Wiles  V.  Suydam,  64  N.  Y.  173;  eQIippenger  v.  Ross,  8  W.  L.  M. 
Lamming  v.  Galusha,  17  N.   Y.   S.  645. 

328;  Everett  v.  Way  mire,  30  O.  S.  '^Hall  v.  Railroad  Ca,  1  Disn.  58 

308;  Shillito  v.  Insurance  Co.,  3  W.  (1855). 

L.  G.  296.  8  Horner  v.  Meyers,  29  W.  L.  R 

3  Watson  V.  Railroad  Ca,  50  Cal.  403  (1893X 

•  Works  V.  Mitchell,  1  Disn.  506^ 


20  JOINDER    OF    ACTIONS.  [§  20. 

rule  applies  to  defenses  set  up  in  an  answer,'  although  a  mo- 
tion to  separately  state  and  number  alleg-ations  of  new  matter 
in  an  answer  which  are  without  merit  as  matter  of  defense, 
although  the}"  do  not  relate  to  other  facts  therein  which  con- 
stitute a  defense,  cannot  be  sustained,  but  such  new  matter 
should  be  stricken  out.-  But  a  general  denial  in  an  answer  and 
also  an  averment  of  an  estoppel  constitute  two  defenses,  and 
should  be  separatelj'^  stated  and  numbered;^  and  so  should  a 
defense  in  an  action  bv  heirs  as'ainst  their  father  restrainincj 
him  from  interfering  with  land,  on  the  ground  that  he  had  for- 
feited his  rights  therein,  that  he  deeded  all  the  premises  with 
bis  own  money  and  placed  the  title  in  their  name,  and  also 
that  he  had  subsequently  redeemed  the  land  from  tax  sale.^ 

Where  a  motion  to  require  the  plaintiff  to  separately  state 
and  number  his  causes  of  action  is  granted,  merely  placing 
numbers  opposite  paragraphs,^  or  an  interlineation  by  writing 
'"'•first  cause  of  action,''  and  "second  cause  of  action," over  the 
different  causes,  is  not  sufficient.^  A  prayer  for  judgment 
should  not  be  asked  in  each  cause  of  action,  but  the  petition 
should  contain  a  general  pra3"er  at  the  end,  for  all.^  Where  a 
single  cause  of  action  is  stated  in  several  divisions,  a  separation 
of  which  may  be  unnecessary  in  all  cases,  yet  essential  as  to 
some,  the  plaintiff  cannot  urge  his  own  inaccuracy  in  making 
the  separation  as  a  ground  for  defeating  a  demurrer  which 
adopts  and  follows  his  own  division  and  classification.^  Each 
cause  of  action  must  be  complete  in  itself;  yet  the  prevailing 
judicial  opinion  is  that  in  stating  several  causes  of  action  in  a 
petition,  it  may  not  be  necessary  to  repeat  some  general  aver- 
ments essential  to  each,  but  that  reference  may  be  made  to 
distinct  allegations  or  paragraphs  in  a  preceding  cause  of  ac- 

J  O.  Code,  sec.  5071.  stated  :  "  Plaintiff  for  his  second  cause 

2  Ridenour  V.  Mayo,  29  O.  S.  138.  of  action   adopts  the  words  in  his 

3  French  v.  McConnell,  1  Clev.  Rep.  first  cause  of  action  herein,  the  same 
187.  as  if  fully  here  rewritten,  beginning 

♦Smith  V.  Smith,  1  Clev.  Rep.  117.     with  the  word  ' '  in  the  first  line 

5Weisenoglev.  Powers,  1  Clev.  Rep.  thereof,  and  ending  with  the  word 

141.  ' '  in  the line  thereof." 

6 Elizabeth  V.Morrison,  1  Clev.  Rep.  "Brainard    v.   Rittberger,  2   Clev. 

195.   The  petition  or  auswershould  be  Rep.  154. 

rewritten,  and  in  stating  the  cause  of  ^Victory  Webb,  etc.  Mfg.  Co.    v. 

action   after  the  first,  it  should  be  Beecher,  26  Hun,  48. 


§  -^1-J 


jolXDEU    OF    ACTIONS. 


21 


tion,  thereby  incorporating  the  same  in  a  subsequent  cause  of 
action  and  avoiding  repetition.^  Where  a  note  and  mortgage 
are  pleaded  in  one  paragraph,  they  may  be  referred  to  in  a 
subsequent  cause  of  action  as  having  been  set  forth  in  a  pre- 
ceding paragraph,  without  repeating  the  same.-  AVhere  an 
amendment  is  made  setting  forth  another  and  different  cause 
of  action,  which  in  fact  does  not  constitute  a  cause  of  action, 
there  is  no  misjoinder,  as  it  may  be  disregarded.^ 

Sec.  21.  (.'oiisistency  iii  causes  united. —  That  causes  of 
action  may  be  united  in  one  petition  they  must  be  consistent 
with  each  other,  and  belong  to  one  of  the  classes  enumerated 
by  the  code;*  inconsistent  statements  are  construed  against 
the  one  pleading  them;^  but  it  should  not  be  assumed  that 
a  plaintiff  under  a  second  or  general  count  intends  to  set  up 
and  prove  facts  inconsistent  with  the  allegations  in  the  first 
count."  A  party  may,  however,  prosecute  as  many  remedies 
as  he  legally  has,  if  they  are  consistent  and  concurrent.' 
Legal  and  equitable  causes,  when  consistent,  may  be  united,** 
but  a  plaintiff  cannot  be  permitted  in  one  petition  to  allege  a. 


I  Jasper  v.  Hazeii.  2  N.  Dak.  401 ; 
51  N.  W.  Rep.  585  (1S92):  Simmons  v. 
Fairchild.  43  Barb.  4(i4 ;  Manufactur- 
ing Co.  V.  Beecher,  55  How.  Pr.  193. 
Contra,  Pennie  v.  Hildreth,  81  Cal. 
127 ;  22  Pac.  Rep.  398 ;  Green  v.  Clif- 
ford, 94  Cal.  49 ;  29  Pac.  Rep.  331.  "  It 
has  never  been  the  settled  law  that  the 
preliminary  averments  of  a  petition 
can  never  be  made  part  of  subsequent 
counts  by  apt  and  express  reference 
and  without  being  rewritten.  Each 
count  must  stand  by  itself,  but  is  not 
fatally  defective  because  it  incorpo- 
rates, by  reference,  certain  general 
averments  necessary  to  all  the  counts, 
if  the  reference  be  so  plain  and  ex- 
plicit as  to  leave  no  doubt  as  to  its 
meaning.  Such  a  pleading  is  not,  in 
general,  to  be  commended;  it  may 
be,  as  it  has  been  called,  'slovenly,' 
but  is  not  bad  enough  to  upset  a 
judgment."  Green  v.  Clifford,  94 
Cal.  49.  See,  also.  Little  v.  Commis- 
sioners, 34  N.  E.  Rep.  499  (Ind..  189:3). 


2  Yost  V.  Bank.  94  Cal.  494 ;  29  Pac. 
Rep.  858.  See  Mausiield  v.  Shipp,  128 
Ind.  55. 

3  Hawkins  v.  Fnrnace  Co.,  40  O.  S. 
507. 

1  Campbell  v,  McElevey,  2  Disn. 
574,  584 ;  Thomas  v.  Railroad  Co.,  97 
N.  Y.  245 ;  Henderson  v.  Jackson,  40 
How.  Pr.  168;  Bowen  v.  Mand.n-ille. 
95  N.  Y.  237-9 ;  Hause  v.  Hause,  2!) 
Minn.  252;  Smitli  v.  Hallock,  8  How. 
Pr.  73 ;  Stewart  v.  Huntington,  2 
N.  Y.  Supp.  205. 

•^Mechanics'  Sav.  &  Bldg.  Loan 
Ass'n  V.  O'Conner,  29  O.  S.  651; 
Board  of  Education  v.  Shaw.  15  Kan. 
41;  Butler  v.  Kaulback,  8  Kan.  671. 

« Ferguson  v.  Gilbert,  16  O.  S.  91. 

''Bowen  V.  Maudeville,  supra;  Mor- 
gan V.  Skid  more,  55  Barb.  263 ;  Whit- 
ney V.  Allaire,  1  Hill,  484. 
-  sSturgess  v.  Burton,  8  O.  S.  215; 
Lattin  v.  McCarty,  41  N.  Y.  107  ;  New 
York  Ice  Co.  v.  Insurance  Co.,  21 
How.  Pr.  290. 


22  JOINDKR    OF    ACTIONS.  [^21. 

cause  of  action  which  would  affirm  a  contract,  and  in  another 
seek  to  rescind  it ;  ^  nor  can  a  forfeiture  of  a  lease  for  non- 
payment of  rent,  and  a  judgment  for  the  rent  due,  be  sought 
in  the  same  petition,^  and  the  prayer  in  the  petition  may 
operate  as  an  election.' 

It  has  been  held  by  a  court  of  inferior  jurisdiction  of  Ohio, 
that  a  claim  cannot  be  alleged  against  a  corporation  for  dam- 
ages "arising  from  its  refusal  to  transfer  certificates  of  stock 
upon  its  books,  as  one  cause  of  action,  and  as  another  cause  in 
the  same  petition,  that,  if  the  claim  of  the  corporation  that 
such  stock  was  illegally  issued,  an  overissue  and  void,  be  tru.>, 
then  the  plaintiff  is  entitled  to  damages  because  the  cor- 
poration negligently  and  fraudulently  issued  the  stock  and 
permitted  its  circulation,  as  such  causes  of  action  are  incon- 
sistent; that  the  question  of  the  legality  of  the  stock  is  one 
cause,  and  that  of  the  illegality  of  the  issue,  fraud  and  neg- 
ligence another;  each  requiring  different  pleadings  and  dif- 
ferent rules  of  evidence,  so  that  an  election  should  be  made 
upon  which  the  plaintiff  would  rely.*  Still  another  court  of 
inferior  jurisdiction,  in  three  well-considered  cases  arising 
from  the  same  source,  although  different  ones,  took  a  contrary 
view,  holding  that  such  causes  could  be  united  and  the  plaint- 
iff not  required  to  make  an  election,  upon  the  principle  that 
the  plaintiff  cannot  safely  determine  before  the  development 
of  the  trial  what  will  prove  to  be  the  true  nature  of  the 
transaction  on  the  defendant's  part.^ 

The  court  last  mentioned  correctly  states  the  rule  of  law 

1  Owens  V.  Hickman,  2  Disn.  471 ;  T.  P.  Ry.  Co.,  16  W.  L.  B.  399  (1886); 
Trimble  v.  Doty,  16  O.  S.  118,  129;  11  "VV.  L.  B.  86.  Judge  Force  says: 
Morris  v.  Rexford.  18  N.  Y.  552  ;  "  A  plaintiff  seeking  to  recover  upon 
Bowen  v.  Maudeville,  95  N.  Y.  237.  either  of  two  causes  of  action,  both 

2  Campbell  v.  McElevey.  2  Disn.  of  which  cannot  be  true,  and  he  does 
571 ;  Countee  v.  Armstrong,  10  W.  not  knew  wliich  one  is  true,  may 
L.  B.  339.  state  them  as  separate  causes  of  ac- 

^Corry  v.  Gaynor,  21  O.  S.  277.  tion,  staling  them  in  the  alternative. 

^  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.  in  one  petition.     A  plaintiff  seeking 

V.  Third  Nat.  Bank.  1  O.  C.  C.  206  a  single  recovery  upon  tvN-o  grounds. 

.( 1 885).  both  of  which  may  be  true,  may  state 

5  Citizens'  Nat.  Bank  v.  C,  N.  O.  &  both  grounds  in  a  single  cause  of  ac- 

T.  P.  Ry.  Co.,  9  W.  L.  B.  355,  opinion  tion."   See  Spreen  v.  Sandman,  2  O.  C. 

by  Judge  Force,  Cincinnati  superior  C,  441-3.     See,  also,  art  10,  W.  L.  B. 

court :  First  Nat  Bank  v.  C,  N.  O.  &  142. 


§  22.]  JOlNDKk    OF    ACTIONS.  23 

as  to  the  right  of  the  pleader  to  plead  in  the  aUei'iiative,^ 
and  deemed  the  causes  of  action  consistent.-  This  rule  is  ex- 
tended to  defenses;  a  defendant  is  allowed  to  make  as  many 
defenses  as  he  may  have,  when  they  are  consistent  with  each 
other.-^ 

To  compel  an  election  between  inconsistent  counts  the 
pleader  should  do  so  by  motion  and  not  by  demurrer;*  but 
where  the  causes  united  are  entirely  inconsistent  and  therefore 
a  misjoinder,  a  demurrer  of  course  will  lie.'^  A  court  is  not 
bound  to  act  unless  the  defect  is  specifically  pointed  out.* 

Sec.  22.  Single  recovery  upon  two  grounds  further  eou- 
sidereil. — -The  rule  is  well  settled  that  where  there  are  several 
^rounds  or  alternative  reasons  "for  crrantinsf  a  sing-le  relief, 
all  of  which  constitute  but  one  cause  of  action,  the}'  may  be 
stated  in  two  counts  and  alternative  relief  souo'ht.  Althousfh 
the  rules  of  pleading  do  not  allow  the  pleader  to  split  his  cause 
of  action  without  sufficient  reason,  yet  courts  hold  this  rule 
flexible  when  justice  requires,  and  justice  will  have  no  better 
reason  for  making  an  exception  than  where  a  plaintiff  cannot 
safel}'"  determine  which  cause  may  be  the  true  one,  the  facts 
being  in  the  possession  of  his  opponent.  These  are  the  grounds 
and  principles  upon  which  this  doctrine  rests,  and  it  has  been 
frequently  enunciated  by  the  courts.  It  has  been  held  that,  in 
an  action  for  work  and  labor,  a  count  setting  forth  an  agree- 
ment to  pa}^  an  agreed  price  is  not  inconsistent  with  another 
count  claiming  recovery  u])on  the  quantum  7nermt  and  no 
election  is  required ;  ^  that  a  contract  may  be  sought  to  be  set 
aside  as  illegal,  or  if  found  valid  some  relief  consistent  with 
that  view ; '  that  in  an  action  for  recover v  of  loss  bv  fire  against 
an  insurance  company,  one  count  claiming  that  a  company  in 
consideration  of  certain  sums  i)aid  it  had  insured  plaintiff,  and 
in  another,  that  in  consideration  of  a  sum  of  money  paid  to  its 

lid.  'Bates'Pldg.,  p.  214. 

2  See  sec.  22,  posf.  swiigon    v.   Smith,  61    Cat   209; 

^  See  sec  18,  post.  Jones   v.   Palmer,    1   Abb.   Pr.   442; 

4  Pavey  v.  Pavey,  30  O.  S.  300 ;  Pet-  Stearns  v.  Dubois,  55  Ind  257 ;  Loog- 
erson  v.  Roach.  32  O.  S.  374  prey  v.  Yates,  31  Hun,  432.     Contra, 

5  Campbell  v.  McElevey,  S  Disn.  Hewitt  v.  Brown,  21  Minn.  163;  Plum- 
574.  mer  v.  Mold,  22  Minn.  15. 

6  Gilbert  v.  Sutliflf,  3  O.  S,  129.  9 Granville  v.  Society,  11  O.  392. 


-i  JUINDEU    OF    ACTIONS.  [§  22. 

duly  authorized  agent  it  had  insured  him,  was  permissible;' 
and  so  with  a  count  in  an  action  by  a  corporation  against  the 
maker  of  a  note,  that  it  was  given  for  part  of  the  capital 
stock  of  the  company,  and  in  another  that  it  was  given  for  a 
premium  upon  a  jiolicy  of  insurance,  as  an  agreement  to  con- 
tribute ratably  to  the  losses  and  expenses  of  the  company ;  -' 
or  a  count  alleging  an  agreement  to  exchange  merchandise 
and  failure  to  deliver  as  agreed,  and  another  averring  a  sale 
and  deliver}''  of  goods  by  plaintiff  for  a  certain  sum;^  or  it 
may  be  alleged  in  one  count  that  an  animal  was  killed  through 
the  negligence  of  a  railroad  compan}^  and  in  another  that  it 
was  killed  where  the  company  had  the  right  to  construct  a 
fence  but  did  not;^  or  in  an  action  for  the  recovery  of  the 
])rice  and  value  of  land  sold,  the  petition  may  contain  a  para- 
graph declaring  upon  a  special  contract,  and  another  upon 
(pcantum  valehat,  in  order  to  meet  every  phase  of  the  evidence.' 

A  court  will  not  compel  an  election  to  be  made  in  an  action 
upon  a  petition  alleging  a  promise  by  a  common  carrier  to 
safely  carry  and  deliver  goods,  and  in  another  count  a  promise 
on  the  part  of  the  carrier  to  store  and  preserve  the  goods  in 
its  warehouse  at  a  certain  station,  where  the  goods  were  de- 
stroyed by  fire,  as  it  might  api)ear  that  it  was  liable  'for  a 
portion  as  a  carrier  and  as  to  the  rest  as  warehousemen.^ 

Separately  stating  two  grounds  for  a  single  cause  of  action 
does  not  make  it  two  causes.'  Alternative  averments  should 
not  be  made  unless  a  good  cause  of  action  is  set  forth  in  each, 
as  alternative  relief  cannot  be  granted  unless  each  cause  sets 
out  a  o-ood  cause  of  action.^ 


I  Velie  V.  Newark  Citj' Ins.  Co.,  65  Boone's  Pldg.,  sec.  17;  Williams  v. 

How.  Pr.  1 ;  12  Abb.  N.  C.  809.  Lowe,  4  Neb.  383;  Walters  v.  Insur- 

2Birdseye  v.  .Smith.  32  Barb.  217.  auce  Co.,  5  Hun,  343;  Matthews  v. 

'Jones  V.  Palmer.  1  Abb.  Pr.  442.  Copeland,  71)  N.  C.  493,  suit  on  two 

4 Pearson    r.  M.  &  S.  P.  R.  R.  Co.,  bonds  of  officer;  Thatcher  v.  Hauu. 

45   Iowa,  497.     See,  also,  generally,  12  Iowa,  303. 

Van  Brunt  v.  :Mat!ier,  48  Iowa,  503.  "  Welch  v.  Piatt,  32  Hun,  194. 

5 Stearns  v.  Dubois,  55  Ind.  257.  8  Mobile  Savings  Bank  v.  Burke,  94 

6  Whitney  v.  Chicago  &  N.  W.  Ry..  Ala.  125;  10  S.  Rep.  328  (1891);  Sum- 

27  Wis.  327.     .See  generally  on   this  mit  Co.  Bank  v.  Smith,  1  Handy,  575 : 

subject,  Pomeroy's  Rem.  R.  &  R..  sec.  Anderson  v.  Speers,  58  How,  Pr.  68  : 

576 ;  Bliss  on  Code  Pleading,  sec.  120 ;  Krutz  v.  Fisher,  8  Kan.  90. 


§§  23,  2-1.]  ■       JoIXDER    OF    ACIIONS.  25 

Sec.  23.  Same  transaction,  or  traiisaetioii  connected  with 
same  subject  of  action,  is  the  first  division  of  actions  which 
the  code  *  provides  ma}"  be  united.  It  may  here  be  noted  what 
others  have  said,  that  this  division  is  one  which  courts  and 
writers  have  found  difficult  of  treatment;  necessarily  so  be- 
cause its  scope  is  broad  and  varied,  and  a  decision  of  one 
case  will  hardly  be  applicable  to  another.  One  of  the  latest 
writers  -  states  that  so  far  as  he  is  aware  no  court  lias  attempted 
to  define  the  word  "transaction,"  with  the  qualification  added 
that  each  case  must  be  decided  upon  its  own  circumstances. 
The  latter  is  probably  true,  but  man}-  aitempts  have  been 
made  at  a  definition.  A  very  simple  one  is  given  by  the 
supreme  court  of  Kansas,'*  saying  that  it  probabl}-"  means 
whatever  may  be  done  by  one  person  which  affects  the  rights 
of  another,  out  of  which  a  cause  of  action  may  arise.  In  Xew 
York,*  with  reference  to  contract  and  a  tort,  it  is  defined  as 
the  whole  proceeding,  commencing  with  the  negotiation  and 
ending  with  the  performance  of  the  contract.  It  is  also  de- 
fined as  a  broader  term  than  contract,  including  not  only  that, 
but  any  occurrence  between  the  parties  that  may  become  the 
foundation  of  an  action.'* 

This  provision  was  purposely  made  general,  so  that  courts, 
following  the  liberal  rules  of  the  chancery  courts,  may  adopt 
such  interpretations  as  may  be  found  most  convenient  and 
best  calculated  to  promote  the  ends  of  justice.® 

Sec.  24.  Same  transaction  continued  —  Actions  held  joiu- 
ahle. —  A  review  of  the  actions  which  the  courts  have  held 
joinable  under  this  division  will  be  made  in  this  section.  An 
action  upon  an  account  may  be  joined  with  a  cause  of  action 
to  enforce  a  mechanic's  lien  on  real  estate  given  to  secure  the 
same,  if  the  two  causes  of  action  affect  all  the  parties;^  or  an 
action  on  a  tort  and  a  contract,  when  arising  out  of  the  same 
transaction  and  between  the  same  parties;^  an  action  upon 

10.  Code.  sec.  5019.  Beikey.  10  Minn.  203-5;   Palmer  v. 

-Maxwell  on  Code  Pldg.,  p.  343.  Tyler,  15  Miuu.  100;  Poiueroy's  Rem. 

8 Scarborough  v.   Smith,    18  Knn.  R.  &   R.,  pp.  505-21;  Bliss  on  Code 

399-406.  Pldg.,  sec.  125. 

*  Robinson  v.  Flint.  16  How.  Pr.  240.  ^  Clippeng^r  v.  Ross,  8  W.  L.  M.  645 

5  Bliss  on  Code  Pldg..  sec.  125.  (Union  Co.  C.  P.,  1861).     See  sec.  586, 

6  New  York  &  X.  H.  R  R  v.  Schuy-  as  to  mode  of  trial. 

ler,  17  N.  Y.  5S)2,  604  (1858);  Fish  v.         sSturgess  v.  Burton,  8  O.  S.  215-18, 


26  JOINDER   OF    ACTIONS.  [§  24. 

an  indebtedness  and  promise  by  an  administrator  as  such,  and 
one  upon  a  promise  of  his  intestate,  if  the  demand  be  con- 
nected with  the  estate ;  ^  or  a  cause  of  action  entitling  a  party  to 
damages  and  one  for  an  injuBction  ;-  or  several  causes  of  action 
for  penalties  for  repeated  violations  of  a  statute  by  a  railroad 
company  for  excessive  charges  for  fare  ;^  or  an  action  for  dam- 
ages in  ejecting  a  ]iassenger,  and  for  the  statutory  penalty  for 
demanding  excessive  fare;*  or  an  action  for  purchase-money 
on  a  land  contract,  and  one  for  the  enforcement  of  a  lien ; '  or 
an  action  by  a  judgment  creditor  of  an  insolvent  railroad  com- 
pany to  enforce  the  payment  of  any  balance  due  on  stock  sub- 
scriptions, the  fund  primarily  liable,  an.l  in  case  that  fund  is 
insufficient  he  may  ask  the  enforcement  of  the  stockholder's 
individual  liability,  it  being  the  peculiar  province  of  a  court  of 
equity  to  marshal  and  apply  such  funds  where  all  parties  are 
in  court  ;^  or  an  action  to  declare  and  enforce  a  trust  and  to 
determine  the  equitable  rights  of  the  parties  under  a  will;^  or 
an  action  for  a  breach  of  promise  to  marry  and  to  pay  a  cer- 
tain sum  of  money  ;^  or  an  action  to  recover  upon  a  policy  of 
insurance  and  to  reform  the  same;'  or  an  action  for  a  personal 
judgment  founded  on  an  original  decree  in  foreclosure,  and 
for  a  revivor  of  that  decree  and  an  order  of  sale  for  the  amount 
due  on  the  original  decree,  upon  the  ground  that  both  causes 
of  action  are  ex  contractu  in  their  nature  and  affect  the  parties 
defendant  only ;  ^"  or  an  action  for  fraud  in  the  sale  of  a  horse 

which  was  a  suit  by  the  creditors  of  3  Railroad  Co.  v.  Moore,  33  O.  S. 

a  bank  to  recover  from  tlie  directors  384 ;  Raih-oad  Co.  v.  Cook,  37  O.  S. 

a  penalty  for  the  overissue  or  wrong-  126. 

fulissueof  bills,  the  claim  being  made  ■*  Railroad  Co.  v.  Cole,  S!</jra.     See 

as  for  tort,  and  also  upon  the  theorj'  Sullivan  v.  Railroad  Co.,  19  Blatcii. 

that  there  was  a  contract  relation  3'^8. 

existing  between  the  directors  and  ^  Linsley  v.  Logan,  33  O.  S.  376. 

creditors,  which  was  however  held  6  Warner   v.   Callender,    20    O.   S. 

not  joinable.     P.,  C.  &  St  L.  Ry.  Co.  190-96 ;  Bliss  on  Code  Pklg.,  sec.  120. 

V.  Hedges,  41  O.  S.  233;  Mcintosh  v,  'Spreen   v.   Sandman,  2  O.  C.  C. 

Mcintosh,  16  How.  Pr,  240 ;  Turner  441-44. 

V.  First  National  Bank,  26  Ind.  562.  8  Dalton  v.  Barchand,  2  Clev.  Rep. 

See  Blios  on  Code  Pldg.,  sees.  120. 125 ;  57. 

Jones  v.  Steauiship  Cortes,  17  Cal.  487.  9  Globe  Ins.  Co.  y,  Boyle,  21   O.  S. 

1  Howard  v.  Powers,  6  O.  92,   133.  120. 

2 Converse   v.  Hawkins,   31   O.   S.  WMoore  v.  Ogden,  35  O.  S.  430-34 

209  (1877).     See  Stansell  v.  Roberts,  (1880). 
13  O.  149 ;  Lewis  v.  Sutliff,  8  O.  00. 


§  25.]  JOINDER    OF    ACTIONS.  27 

and  for  breach  of  warrant}^ ; '  or  two  breaches  of  a  contract  for 
the  delivery  of  goods,  one  that  the  goods  delivared  were  not 
of  the  qualit}'  contracted  for,  the  other  that  a  portion  of  the 
goods  contracted  for  were  not  delivered  at  all  ;2  or  one  petition 
may  contain  a  claim  for  goods  shipped  to  a  commission  mer- 
chant who  converted  them  to  his  own  use,  and  another  that 
the  proceeds  of  the  same  goods  were  by  the  commission  mer- 
chant converted  to  his  own  use;-*  or  in  an  action  against  a  rail- 
road company  for  the  recovery  of  damages  for  killing  stock, 
the  petition  may  contain  a  count  for  negligence  in  failing  to 
keep  a  fence  in  repair  as  required  by  a  contract,  and  another 
for  neo-lio-ence  in  running  the  train.* 

An  action  for  the  recovery  of  damages  for  an  assault  and 
battery  may  be  joined  with  one  for  false  imprisonment ; '  or 
an  action  against  a  carrier  on  account  of  its  negligence  and 
for  money  overpaid  on  freight ; "  or  an  action  for  harboring  a 
man's  wife,  conversion  of  his  property,  and  for  inducing  the 
wife  to  execute  a  deed  of  land ; '  or  a  cause  of  action  for  false 
imprisonment  and  one  for  malicious  prosecution,  when  aris- 
ing out  of  the  same  transaction ;  ^  or  an  action  for  divorce 
and  alimony,  and  to  set  aside  a  deed  fraudulently  made ; '  or 
the  different  grounds  for  divorce,  such  as  adultery  and  cruelty, 
may  be  joined  in  divorce  proceedings ;  ^°  or  in  an  action  to  can- 
cel fraudulent  certificates  of  stock  having  a  common  origin, 
all  the  holders  thereof  may  be  enjoined." 

Sec. 'i5.  Same  trausactiou  continued  —  Actions  held  not 
joinal)le.—  Ohio  courts  have  held  that  an  action  upon  a 
claim  against  a  defendant  in  his  individual,  and  one  in  his 
representative,  capacity  cannot  be  joined;  that  having  elected 
to  charge  such  a  person  in  his  representative  capacity  and 

1  Byers  v.  Rivers,  5  W.  L.  G.  37.  ^  Hamlin  v.  Tucker,  73  N.  C.  502. 

-'Work    V.   Mitchell,    1    Disn.    506        SBarr  v.  Shaw.  10  Hun,  580:  Hen- 


(1857). 


derson  v.  Jackson,  40  How.  Pr.  168. 


3  Keeler  v.  Snodgrass,  8  W.  L.  B.  »  Damon  v.  Damon,  28  Wis.  510. 
219.  i«  Beach  v.  Beach,  11  Paige  Ch.  161 ; 

4  Railroad  Co.  v.  Hedges,  41  0.  S.  Bates'  Pldg.,  p.  422 ;  2  Bishop's  M.  & 
233.  Div.,  sec.  585. 

5  Wiley  V.  Keokuk,  6  Kan.  94 ;  Ca-  ^^  N.  Y.  etc.  R.  Ca  v.  Schuyler,  17 
hill  V.  Terrio,  55  N.  H.  571.  N.  Y.  592. 

6  Adams  v.  Bissell,  28  Barb.    382 ; 
Pomeroy's  R  &  R,  sees.  468,  469, 


2S  JOIXDEK    OF    ACTIONS.  [§  26. 

failed,  the  action  cannot  be  wholh'  changed  and  recovery- 
had  against  him  as  an  individual;'  nor  an  action  sounding  in 
tort  and  upon  a  contract;-  nor  an  action  for  divorce  and  spe- 
cific performance  as  to  the  disposition  of  property ;  ^  nor  an 
action  for  the  recovery  of  rent  under  a  lease,  and  for  the  re- 
covery of  the  premises  as  upon  forfeiture  of  the  lease.*  In 
an  action  on  a  bill  of  exchange,  a  claim  for  statutory  damages 
and  costs  of  protest  need  not  be  set  forth  in  the  petition  as  a 
separate  and  distinct  cause  of  action  disconnected  from  the 
claim  on  the  bill.'^ 

A  tenant  cannot  join  a  cause  of  action  against  a  landlord 
for  breach  of  a  covenant  with  one  arising  from  trespass;"  or 
an  action  for  the  recovery  of  purchase-money  and  delivery 
of  a  certain  note,  and  the  discharge  of  the  mortgage  given  to 
secure  the  same; ''  or  an  action  to  secure  possession  and  a  con- 
veyance to  plaintiff  of  an  apparent  title  by  quitclaim  or 
otherwise,  and  that  a  defendant  be  forever  barred  from  as- 
serting title  to  the  same.^ 

It  is  not  an  essential  requirement,  but  entirely  optional, 
whether  or  not  a  party  will  avail  himself  of  the  privilege  of 
joining  legal  and  equitable  causes  of  action,  even  thpugh  aris- 
ing out  of  the  same  transaction.^ 

Sec.  26.  Contracts  express  or  implied. —  The  second  class 
of  actions  Avhich  the  code'"  permits  to  be  united  are  those 
arising  out  of  contracts  either  express  or  implied.  This  pro- 
vision is  remedial  and  beneficial,  and  must  receive  a  liberal 
construction.''  Unlike  the  common  law  it  includes  all  such 
contracts  as  w9ce  at  common  law  called  simple,  special  or  im- 
plied contracts.  Under  this  provision  the  fiction  of  an  im- 
plied contract  is  preserved,  as  the  right  to  waive  a  tort  and 
sue  upon  an  implied  contract  is  still  recognized ; '^  as,  where 
one  has  tortiously  received  money  from  another   which  he 

iFleislimanu   v.  Slioemaker,  2  O.  ^  Montgomery  v.  McEwen,  7  Minn. 

C.  C.  R,  152,  suit  on  contract  to  con-  351. 

vey  land.  s Lattin  v.  McCaity.  41  N.  Y.   107. 

2Niniocks  v.  Inks,  17  O.  596.  »  Bruce  v.  Kelly,  5  Hun,  229. 

3  Roberts  v.  Glenn.  1  Clev.  Rep.  46.  lOQ.  Code.  sec.  5019. 

^Counteev.  Armstrong,  10  W.  L.  "Gridley  v.  Gridley,  24  N.  Y.  136; 

B.  339.  Emery  v.  Pease,  20  J^.  Y.  64. 

5  Bank  v.  Smith.  1  Handy,  575.  12  Bliss  on  Code  Pldg.,  sec.  153. 

« Weeks  V.   Ket.'lt;is,   13  Daly,  559. 


§   2li.]  JOIXDKIJ    OK    ACTIOXS.  29 

cannot  in  good  conscience  retain,  there  is  an  implied  contract 
that  the  money  will  be  returned,  and  an  action  can  therefore 
be  maintained  in  assumpsit  for  the  money,  or  the  tort  may  be 
waived  and  suit  brought  for  damages  instead.^ 

xlnd  so  where  the  tort  is  waived,  and  an  action  is  brought 
in  assumpsit  as  upon  an  implied  contract,  other  causes  of  ac- 
tion upon  express  or  implied  contract  may  be  united;'^  as,  in 
an  action  for  goods  sold  and  delivered,  another  cause  of  action 
that  the  goods  had  been  wrongfully  taken  may  be  joined.' 

This  class  includes  contracts  in  writing  or  by  parol,  prom- 
issory notes,  bills  of  exchange,  accounts,  covenants  and  judg- 
ments.'' A  cause  of  action  upon  a  contract  may  be  joined 
with  another  for  damages  arising  from  fraud  or  negligence 
connected  therewith;^  or  an  action  upon  a  written  contract 
to  build  a  house  with  one  upon  parol  to  do  extra  work  and 
furnish  extra  material.^  AVhile  actions  upon  promissory  notes 
may  be  joined  with  actions  upon  account,  yet  if  one  or  the 
other  is  not  due  they  cannot  be  united;''  nor  can  actions  upon 
contracts  which  are  inconsistent  with  each  other  be  joined.^ 
So,  where  facts  are  stated  in  a  petition  making  an  action  on  a 
contract,  as  in  assumpsit  for  the  non-delivery  of  certain  prop- 
erty, fraudulent  statements  or  representations  which  operated 
as  an  inducement  to  enter  into  the  contract  and  which  are 
foreign  to  the  complaint,  and  would  only  be  available  in  a 
collateral  proceeding  entitling  the  plaintiff  to  another  and 
different  remedy  than  the  one  which  he  was  seeking,  should 
not  be  minffled  with  the  facts  which  constitute  the  cause  of 
action.* 

Separate  causes  of  action  arising  out  of  a  breach  of  con- 
tract, and  injuries  to  property  the  subject  of  the  contract, 
intrusted  to  another  to  enable  him  to  perform  it,  may  be 
joined  as  arising  out  of  one  transaction.'" 

1  Brundred  v.  Rice,  4'9  O.  S.  640-50 ;  *  Maxwell,  Code  Pldg..  p.  SIC. 

4  Waite's  A.  &  D.  469  and  cases  cite  1 ;  ^  Jones  v.  Johnson,  10  Busli.  G49. 

Ripley  v.  Gelston,   9  Johns.  201;  6  Kpieice  v.  Bicknell,  11  Kan.  202. 

Am.  Dec.  271;  7  Lawson's  R.  &  R.,  ^Wurlitzer  v.  Suppe,  38  Kan.  31. 

sec.  3691.  8  Nichols  v.  Drew,  94  N.  Y.  22. 

!« Stewart  v.    Balderston,    10   Kan.  » Graves  v.  Waite,  59  N.  Y.  158-9. 

131.  10  Badger  v.  Beneaict,  1  Hilt.  414  ;  4 

»IIawk  V.   Thorn,   54    Barb.    164.  Abb.  Pr.  176, 
See  Pomeroy  R.  &  R.,  sec.  492 ;  Grid- 
lev  V.  Gridlev,  24  N.  Y.  130. 


80  JOINDEK   OF   ACTIONS.  [§  27. 

Sec.  27.  Injuries  to  person  and  x>i*operty. —  Actions  for 
injuries  to  the  person  and  property  may  be  joined  in  one  ac- 
tion.* This  inchides  actions  for  false  imprisonment,  assault 
and  battery,  injuries  to  personal  property,  negligence  in  the 
performance  of  duty,  fraud  and  deceit,  false  representations, 
seduction, —  in  fact  all  torts  excepting  libel,  slander  and  mali- 
cious prosecution,  and  all  those  for  injuries  to  property,  ex- 
cepting causes  of  action  for  the  recovery  of  real  or  personal 
property.^  An  action  for  an  injury  to  property  caused  by 
an  overflow  arising  from  an  obstruction  in  the  street  before 
the  plaintiff  became  the  owner  of  the  premises,  and  also  an 
action  for  damages  for  injury  to  the  premises  from  the  same 
cause  after  he  became  the  owner,  are  joinable.'  But  where 
a  petition  unites  a  cause  of  action  for  damages  for  false  im- 
prisonment with  one  for  malicious  prosecution,  the  plaintiff 
should  be  required  to  make  an  election  upon  which  he  will 
proceed  to  trial.^  As  a  wrong  arising  from  fraud  belongs  to 
the  class  of  injuries  denominated  injuries  to  property,  a  cause 
of  action  for  deceit  in  the  sale  of  property  may  be  united 
with  an  action  for  the  conversion  of  property,  for  both  con- 
stitute injuries  to  property .* 

Where  two  sales  of  property  have  been  made  by  a  public 
officer,  one  by  the  officer  himself  and  the  other  by  his  deputy, 
in  an  unlawful  or  fraudulent  manner,  the  two  sales  come 
within  the  division  of  transactions  connected  with  the  same- 
subject  of  action,  and  also  within  the  "taeaning  of  the  third 
subdivision  of  the  code  as  injuries  to  property,  and  as  such 
may  be  joined  in  the  same  petition.^ 

Injuries  to  two  pieces  of  property  would  not  seem  to  con- 
stitute two  causes  of  action  unless  the  plaintiff  should  choose- 
to  divide  the  petition  itito  two  counts  and  call  them  such, 
the  injury  in  respect  to  both  being  alike  and  continuous,  even 

1  O.  Code,  sec.  5019.  juries  to  piopeity.  see  Howe  v.  Peck- 

2  Bliss  on  Code  Pldg.,  sec,  129 :  Pom-  ham,  10  Barb.  656 ;  6  Ho-v.  Pr.  229 ; 
eroy's  R  &  R,  sees.  495-498;  Max-  De  Silver  v.  Holden,  18  J.  &  S.  236. 
well  on  Code  Pldg.,  pp.  351-2.     As  to  ^  Hall  v.  Railroad,  1  Disn,  59. 
injuries  to  person,  see  Wiley  v.  Keo-  ^  Nebenzahl  v.  Townsend,  10  Daly, 
kuk,  6  Kan.  94 ;  Cahill  v.  Terrio,  55  232. 

N.   H.  571:    Holmes   v.  Sheridan,   1        *  Cleveland  v.    Barrows,  59  Barb 

Dili  351 ;  Freeman  v.  Webb.  21  Neb.     304. 

160,  person  and  property.     As  to  in-        <>  Freeman  v.  Webb,  21  Neb.  160. 


§  28.]  JOINDER    OF    ACTIONS.  31 

though  they  should  be  considered  two  causes  of  action,  an  1, 
so  stated,  they  are  properh'  joined.^ 

Actions  for  distinct  and  independent  injuries  to  property, 
whether  the  property  injured  in  each  case  be  the  same  or 
different  property,  and  either  real  or  personal,  may  be  joined 
in  the  same  petition ;  ^  or  an  action  for  damages  for  an  injury 
to  the  person  and  to  his  property  while  a  passenger  upon  a 
steamboat  on  the  same  voyage;  or  an  action  for  damages  to 
a  horse  caused  by  excessive  driving  with  one  for  the  conver- 
sion of  the  horse  may  be  joined.' 

Sec.  28.  Injuries  to  character. —  Different  causes  of  action 
for  injuries  to  character  may  be  united  in  one  petition,*  such 
as  an  action  for  slander  and  one  for  malicious  prosecution,* 
or  for  slander,  libel  and  malicious  prosecution,^  or  an  action 
for  slander  and  false  imprisonment  when  arising  out  of  the 
same  transaction,'  or  for  assault  and  battery  and  false  im- 
prisonment.* 

But  a  petition  claiming  damages  for  slander  and  for  assault 
and  battery  in  the  same  count  is  bad  on  demurrer;^  and  so 
with  a  petition  charging  slander  against  two  defendants,  alleg- 
ing that  they  both  spoke  the  slanderous  words.^" 

Where  a  petition  contains  a  general  charge  of  uttering 
slanderous  words  at  sundry  times,  each  utterance  furnishes  a 
ground  for  recovery,  and  constitutes  a  separate  cause  of  action 
and  should  be  separately  stated  and  numbered.''  But  if  the 
defendant  fails  to  move  to  require  such  a  general  charge  to  be 
separately  stated,  evidence  of  utterances  between  the  dates 
in  the  petition  may  be  admitted.'- 

Under  codes  abolishing  the  distinction  between  actions  of 


'  Biickner    Woolen    Mills    Co.    v.  " Harris    v.    Avery,    5    Kan.    146 ; 

Henry.  73  Wis.  229.  Carter  v.  De  Camp,  40  Hun,  258. 

2  More  V.  Massini,  32  Cal.  590.  *  kahili   v.   T(nTio.   55   N.   H.  571 ; 

sSomerville  T.  Metcalf,    15  N.   Y.  Wiley  v.  Keokuk,  6  Kan.  94. 

Week.  Dig.  154;  Jones  v.  Steamboat,  'J  Anderson  v.  Hill,  53  Barb.  238. 

79  Am.  Dec.  142.    See  generally.  Bliss  ">  Anderson  v.  Pack,  4  W.  L.  B.  596, 

on  Code  Pldfr.  sec  129 ;  Maxwell  on  I'Alpin   v.   Morton,  21   O.   S.   536 

Code  Pldg.  3')1.  Swinney     v.    Nave,     22     Ind.    178 

*  O.  Code,  see.  5019,  Fleischmann  v.  Bennett,  87  N.  Y.  231 

5  Shore  v.  Smith,  15  O.  S.  173.  See  Secor  v.  Sturgis,  16  N.  Y.  558; 

e  Brown  v.  Rice,  51  Cal.  489 ;  Hull  Cracraft  v.  Cochran,  16  la,  301. 

V.  Vreeland.  42  Barb.  543:  Martin  v.  i-Alpin  v,  Morton,  s»;jr<7.    See,  also, 

Mattisoii.  K  Abb.  I'r.  3.  sec.  754.  post. 


32  .loI.NDKU    OF    ACTJOXS.  [^'^   2'J,   ^0. 

trespass  and  case,  it  has  been  held  that  counts  cliarging  ina- 
licious  prosecution,  false  imprisonment  and  slander  may  be 
united.'  The  theory  upon  which  such  rulings  are  made  is  that 
reputation  may  be  as  effectuallj^  injured  by  malicious  prosecu- 
tion and  false  imprisonment,  as  by  spoken  and  written  words, 
although  the  latter  is  not  generally  considered  as  belonging  to 
this  division.^ 

A  petition  alleging  a  series  of  acts  consisting  of  a  publica- 
tion of  a  libel  and  raaliciousl}'  causing  an  arrest  does  not  mis- 
join  causes  of  action.^ 

In  an  action  for  slander  a  defendant  may  deny  having  ut- 
tered the  words,  and  also  set  up  as  an  additional  defense  by 
way  of  justification  that  the  words  were  true.'' 

Sec.  29.  Recovery  of  possession  of  personal  property  with 
damages. —  Claims  for  the  recovery  of  the  possession  of  per- 
sonal propert}^  with  or  without  damages  for  the  withholding 
thereof,  is  the  fifth  class.^  The  action  falling  under  this  head 
is  replevin.  An  action  on  an  account  stated  and  i7idebif-atus 
assumpsit  cannot  be  joined  with  replevin.^  The  most  com- 
mon claim  which  is  united  with  an  action  of  replevin  is  one  for 
damages.^ 

Sec.  30.  Recovery  of  real  property  with  damages. —  Actions 
for  the  recovery  of  real  property,  with  or  without  damages 
for  the  withholding  thereof,  or  to  recover  the  rents  and  profits 
of  the  same,  or  for  the  partition  thereof,  may  be  united  in  one 
petition ;  ®  but  being  separate  causes  of  action  tliey  should  be 
separatel}'  stated  and  numbered." 

An  action,  however,  to  recover  rents  due  upon  a  lease,  as- 
serting a  forfeiture  in  consequence  of  such  non-payment,  and 

1  Krug  V.  Ward,  77  III.  603;  Barr  v.  8  0.  Code,  sec.  5019 ;  Perry  v.  Ricli- 
Shavv,  10  Hun,  580.  ardson,  27  O.  S.  110.  partition  and  ac- 

2  Shore  v.  Smith,  15  O.  S.  173 ;  Hull  count  for  rents.  See  Black  v.  Drake, 
T.  Vreeland,  42  Barb.  543;  Noonan  28  Kan.  482  ;  Harrall  v.  Gra3\  12  Neb. 
V.  Orton,  32  Wis.  106.  543 ;  Vandervoort  v.  Gould,  36  N.  Y. 

3  Watts  V.  Hilton,  3  Hun,  606.  639 :  Scarborough  v.  Sniitli,  18  Kan. 
4Buhler  v.   Wentworth,   17  Barb.     390;  Van  Alstine  v.  McCarty,51  Barb. 

649.     See  sec.  754,  post.  326 ;   Stern  be  rger   v.    McGovern,    50 

5  O.  Code,  sec.  5019.  N.  Y.  12. 

fiCorbin  v.    Bouve,  1    C.  S.  C.  R  nicKinney  v.  McKinney,  8  O.  S. 

259-61.  -123-29. 

"!  Pharis  v.  Carver,  13  B.  Mon.  230. 
See  chapter  on  Replevin. 


§  31.]  JOINDEK    OF    ACTIONS.  33 

asking  to  be  restored  to  the  possession  of  the  property,  can- 
not be  maintained,  as  the  remedies  are  inconsistent  with  each 
other  ;^  or  a  petition  stating  a  cause  of  action  for  the  recovery 
of  realty  upon  the  forfeiture  of  a  lease,  with  damages,  for  an 
injunction  against  waste  and  for  a  receiver,  is  a  misjoinder.^ 

It  has  been  held,  too,  that  an  action  to  have  certain  real  and 
personal  property  partitioned,  and  also  for  an  accounting  be- 
tween the  joint  owners,  may  be  joined,  and  if  justice  requires 
the  real  and  personal  property  to  be  sold  together,  that  may  be 
done;''  or  a  claim  for  the  recovery  of  land,  and  for  the  value 
of  the  occupancy  of  it,  may  be  united.* 

As  legal  and  equitable  causes  of  action  may  be  joined,  an 
action  for  specific  performance  of  a  real  contract,  and  one  for 
damages,  may  be  joined ;  and  if  it  appears  to  be  necessary  to 
obtain  the  rights  of  a  party,  he  may  have  both  tried,  but  the 
modes  of  trial  will  be  diflFerent;^  but  a  plaintiff  in  an  action 
for  the  recovery  of  real  property  cannot  claim  absolute  own- 
ership, and  damages  for  keeping  him  out  of  the  use  of  it,  to  a 
greater  extent  than  may  be  covered  by  the  defendant's  lease 
thereof.'' 

In  an  action  for  the  recovery  of  real  property  the  plaintiff 
may  also  attack  a  deed  under  which  the  defendant  claims 
title  upon  both  legal  and  equitable  grounds.' 

Sec.  31,  Claims  agaiust  trustees. —  The  last  class  is  claims 
against  a  trustee  by  virtue  of  a  contract  or  by  operation  of 
law.^ 

"Where  one  of  two  persons  who  have  signed  a  bill  of  ex- 
change dies  and  the  surviving  debtor  is  appointed  his  execu- 
tor, suit  upon  such  bill  cannot  be  sustained  against  the  sur- 
vivor personally  and  as  trustee ;  ^  nor  can  an  action  against  a 
trustee  of  an  insolvent  bank  for  the  recovery  of  damages  oc- 
casioned  by  illegal  and  unauthorized  investments  made  by 

1  Owens  V.  Hickman,  2  Disn.  471,  ^  Prentice  v.  Janssen,  7  Hun,  86. 

holding  that  judgment  may  be  ren-  <  Armstrong  v.  Hinds,  8  Minn.  254. 

dered  for  the  rent  and  the  action  for  6  sternberger  v.  McGovern,  56  N.  Y. 

the  recovery  dismissed.     See  Stuy-  12-20. 

vesant  v.  Davis,  9  Paige  Ch.  427,  430 ;  «  Smith  v.  Hallock,  8  How.  Pr.  73. 

Underbill  v.Raih-oad  Co.,  20  Barb.  467.  ^phiUips  v.  Gorham,  17  N.  Y.  270. 

2Countee  V.  Armstrong,  10  W.  L.  ^O.  Code,  sec.  5019. 

B.  339.  9  Landau  v.  Levy,  1  Abb.  Pr.  376. 
3 


34  JOINDER    OF   ACTIONS.  [§  32. 

him  be  joined  with  an  action  upon  a  bond  given  by  him  to 
assist  in  making  up  a  deficiency  in  the  assets  of  the  bank.^ 

Causes  of  action  arising  out  of  a  breach  of  trust  by  a  testa- 
tor may  be  united  with  an  action  against  his  executor  to  com- 
pel him  to  account  to  the  extent  of  the  assets  in  his  hands 
for  the  misconduct  and  breach  of  conduct  of  his  testator,-  or 
several  breaches  of  the  same  trust.^ 

Where  an  agent  who  has  been  intrusted  with  money  with 
which  to  buy  real  estate  purchases  the  property  and  takes 
title  in  himself  and  sells  and  appropriates  the  proceeds  thereof 
to  his  own  use,  an  action  may  be  maintained  against  him  as 
for  money  wrongfull}''  withheld,  and  also  for  money  wrong- 
fully or  fraudulently  exacted  and  paid.* 

A  claim  to  enforce  an  express  or  implied  trust  may  be  united 
with  one  to  enforce  a  vendor's  lien  existing  without  any  writ- 
ten contract.' 

An  action  to  compel  an  agent  who  has  purchased  certain 
stock  for  another  at  a  judicial  sale,  and  who  was  to  hold  it  in 
trust  for  the  payment  of  a  debt,  to  account  for  the  same  may 
be  joined  with  another  alleging  want  of  jurisdiction  in  the 
court  making  the  sale,  and  that  the  agent  under  color  of  such 
proceedings  procured  the  transfer  of  the  stock  and  received 
dividends  thereon.* 

Sec.  32.  Actions  to  enforce  liens. —  A  doubt  was  once  ex- 
pressed as  to  whether  an  action  on  a  note,  and  one  on  a  mort- 
gage securing  the  same,  were  joinable.^ 

After  the  passage  of  the  act  in  1864-  which  provided  that 
in  suits  to  foreclose  a  mortgage  given  to  secure  the  payment 
of  money,  or  to  enforce  a  specific  lien  for  money,  a  judgment 
for  money  claimed  to  be  due  may  be  asked,  as  in  a  civil  action 
for  the  recovery  of  money,  and  a  construction  given  it^  to  the 
effect  that  an  action  on  a  note,  and  another  on  a  mortgage 
securing  the  same,  could  be  joined  in  a  single  action,  this 
practice  has  been  followed.^" 

1  French  v.  Salter,  17  Hiin,  546.  '  McCarthy  v.  Garraghty,  10  O.  St. 

2  Price  V.  Brown,  10  Abb.  N.  C.  67.     438. 

3  Id.  8  o.  Code,  sec.  5021. 

*  Kraemer  v.  Deusterman,  37  Minn.  sKing  v.  Saflford,  19  O.  S.  587. 

469.  icButzman  v.  Wliitbeck,  42  O.  S. 

6  Burt  V.  Wilson,  28  Cal.  632.  237. 
6  Williams  v.  Lowe.  4  Neb.  383. 


§  33.]  JOINDER    OF    ACTIONS.  35 

The  right  to  sue  in  equit}^  to  enforce  a  mortgage  lien,  and 
to  proceed  at  law  to  collect  a  debt,  are  regarded  as  different 
but  concurrent  remedies,  but  both  available  in  the  same  action. 
In  order,  however,  to  secure  a  personal  judgment,  the  petition 
must  contain  a  prayer  to  that  effect,^  ai.d  a  judgment  for 
money  in  such  cases  creates  a  lien  upon  the  land  of  the  debtor 
other  than  that  conveyed  by  the  mortgage.'^ 

Judgment,  too,  may  be  rendered  in  a  single  action  against  all 
the  makers  of  a  note,  although  the  mortgage  is  executed  by 
a  part  only  of  the  makers  of  the  note,'  and  against  a  defend- 
ant who  has  been  served  with  process  in  a  county  other  than 
the  one  in  which  the  action  is  pending,*  but  not  where  serv- 
ice has  been  made  by  publication.' 

The  section  of  the  code  providing  for  personal  judgment, 
and  under  which  the  joinder  of  actions  on  the  note  and  mort- 
gage is  allowed,  is  held  not  applicable  to  an  action  against  a 
mortgagor  and  his  grantee  for  the  foreclosure  of  a  mortgage, 
the  grantee  not  personally  assuming  the  indebtedness,  but  ap- 
plies only  where  the  party  against  whom  the  lien  is  sought  to 
be  enforced  is  also  personally  liable  for  the  debt  secured.* 

Following  the  principle  of  the  common  law,  that  three  ac- 
tions could  be  maintained  upon  a  debt  secured  by  a  mortgage/ 
it  is  not  considered*  mandatory  that  the  two  remedies  be  de- 
manded under  the  code,  but  that  separate  actions  may  be 
maintained,  one  to  foreclose  and  the  other  for  a  personal  judg- 
ment, in  the  same  count  at  the  same  time.^ 

An  action  to  recover  a  statutory  assessment  for  tax  and 
penalty  may  be  joined  with  another  to  enforce  the  lien  created 
by  such  statute.^ 

Sec.  83.  Remedy  for  iiiisjoinder. —  The  code'**  provides 
that  when  several  causes  of  action  have  been  improperly 
united  a  demurrer  may  be  filed. '^ 

iGiddingsv.  Barney,  31   O.  S.  80;  Ch.  330 :  Delahey  v.  Clement  2  Scam. 

Spence  v.  Insurance  Co.,  40  O.  S.  520.  575;  Joslin  v.   Millspaugh,  27  Midi. 

-McCarthy  v.  Garraghty,  10  O.  S.  517:  2  Daniell.  Ch.  Pr.  815. 

43S:  Linsley  v.  Logan,  33  O.  S.  379.  "Spence  v.  Insurance  Co.,  40  O.  S^ 

••*  King  V.  Safford,  19  0.  S.  587.  517-20. 

niaholm  V.  Marshall,  29  O.  S.  611.  "Butzman  v.  Whitbeck,  42  O.  S. 

5  Wood  V.   Stanberry,  21  O.  S.  142.  223. 

« Fleming  v.  Kerkendall.  31  O.  S.  lOQ.  Code,  sec.  5062.     . 

568;  Corry  v.  Gay  nor,  21  O.  S.  277.  "See  sec.   101,  post:   O.  Code,  sec. 

"  Dunkley  v.  Van    Buren.  3  .Jnhn-<.  5064. 


36  JOINDER    OF    ACTIONS.  [§  34. 

Sec.  34.  Yenue  and  parties  in  actions  joined. —  It  is  an 

essential  requirement  of  the  code  that  the  causes  of  action 
united  must  not  require  different  places  of  trial,  and,  except 
as  otherwise  provided,  must  affect  all  the  parties  thereto.^ 

10.  Code,  sec.  5020. 


CHAPTER  4. 


VENUE. 

Sec.  35.  Actions  for  recover^'  of  real  I  Sec.  39.  Against    domestic    corpora- 


estate. 

36.  Sale  of  realty  under  mort- 
gage or  incumbrance. 

37;  Action  for  specific  perform- 
ance. 

38.  Where  the  cause  of  action 
arose. 


tion. 

40.  Against  railroad  and  other 

companies. 

41.  Against  non-residents. 
40.  Other  actions. 

43.  Against  administrators,  ex- 

,  ecutors,jetc. 

44.  Change  of  venue. 


Sec.  35.  Actions  for  recovery  of  real  estate. —  It  must  be 
borne  in  mind  that  the  code  provides  reasonable  and  conven- 
ient rules  with  respect  to  the  places  where  actions  may  be 
prosecuted,  which  must  be  liberally  construed  with  a  view  to 
advancing  the  remedies  afforded.^  Actions  for  the  recovery 
of  real  property,  or  of  an  estate  or  interest  therein,  must  be 
brought  where  the  subject  of  the  action — the  land  — is  situated.^ 
If  in  more  than  one  count}'^  the  action  may  be  brought  in 
either;  but  this  can  be  done  onh^  when  the  property  is  an  en- 
tire tract.^  But  the  courts  have  no  power  or  jurisdiction  over 
an  injury  to  land  lying  in  another  state.* 

Under  the  California  code  an  action  for  the  determination 
of  a  right  or  interest  in  real  property,  "in  any  form,''  is  one 
affecting  the  title,  and  is  tried  in  the  county  where  the  land  is.^ 
This  will  include  an  action  to  establish  and  enforce  a  vendor's 
lien,^or  an  action  to  set  aside  a  fraudulent  conveyance  of  land 
by  a  debtor,"  although  he  lives  in  another  county.*     It  will 


1  Oj;borne  v.  Lidy,  51  O.  S. . 

-'  O.  Code,  sec.  50'>2. 

3  O.  Code,  sec.  5023. 

iDu  Breuil  v.  Penna.  Co.,  130  Ind. 
137;  Eachus  v.  Trustee,  17  III.  35; 
Dodge  V.  Colb}',  108  N.  Y.  445 ;  Allen 
V.  Com.  etc.  Co.,  6  L.  R  A.  416  and 
note. 

5  Franklin  v.  Button,  79  Cal.  605. 


8  Henderson  v.  Perkins,  21  S.  W. 
Rep.  1035  (Ky.,  189-3). 

'  Leaf  V.  Marriott,  29  W.  L.  B.  225 
(Ham.  Co.  C.  P.,  1893)  and  cases  cited ; 
Mahoney  v.  Mahoney,  21  N.  Y.  S. 
1097  (1893);  Beach  v.  Hodgdon,  66 
Cal.  187. 

*  !Marcum  v.  Powers,  9  S.  W.  Rep. 
255  (Ky.,  1888). 


38  VENUE.  [§§  36, 37. 

also  embrace' an  action  for  a  trespass  for  an  injury  to  real  es- 
tate, which  must  be  brought  in  the  county  where  the  land  is.^ 
And  so  with  an  action  for  the  reformation  of  a  contract  of 
sale,^  or  an  action  to  restrain  a  threatened  injury.*  The  rule 
is  (liffereit  with  regard  to  trusts,  which  are  more  of  a  per- 
sonal character.  Thus,  a  court  of  equity  which  has  acquired 
jurisdiction  over  the  parties  may  enforce  a  trust  in  relation  to 
lands  situate  in  another  state.  This  is  a  doctrine  settled  by 
numerous  authorities.*  IS'or  does  an  action  for  the  removal  of 
trustees  holding  lands  in  trust,  and  for  the  appointment  of  a 
receiver,  fall  within  this  provision.'  A  suit  to  enforce  A  trust 
upon  realty  may  be  brought  in  any  county  where  the  trustee 
resides,  although  the  land  be  situate  in  another  county.^  But 
it  has  been  held  that  ^an  action  to  enforce  a  resulting  trust 
in  land  of  which  a  person  died  seized  may  be  brought  in  the 
county  in  which  the  land  lies,  even  though  tlie  decedent  die 
and  his  estate  is  administered  in  another  county.' 

Sec.  36.  Sale  of  realty  under  mortgage  or  incuml)iance. 
An  action  for  the  sale  of  real  property  under  a  mortgage  lien 
or  other  incumbrance  or  charge  must  be  brought  in  the  county 
where  the  land  is  situate.^  Under  this  head  may  be  classed 
an  action  to  foreclose  a  mortgage,  or  deed  of  trust,^  or  a  cred- 
itor's bill,^"  but  does  not  apply  to  an  action  for  the  settlement 
of  an  insolvent  corporation  or  partnership,  in  which  case  a 
court  which  has  acquired  jurisdiction  over  it  may  decree  a 
sale  of  land  in  another  county.'^ 

Sec.  37.  Action  for  specific  performance. —  An  action  for 
the  specific  performance  of  a  contract  of  sale  of  real  estate 
may  be  brought  in  the  county  where  the  defendants  or  any 

1  Du  Breuil  v.  Penna.  Co.,  130  Ind.  6  Le  Breton  v.  Superior  Court,  66 

137  (1891).  Cal.  27. 

2 Franklin  V.  Dutton,  79  Cal.  605.  "Reese  v.  Murnan,   31    Pac.   Rep. 

s  Drinkhouse  v.  Water  Works,  80  1027 ;    5    Wash.    373.      Washington 

Cal.  308.  Code,  158,  is  substantially  the  same  as 

*  Buruley  v.   Stevenson,   24  O.  S.  the  Ohio  Code. 

474 ;  Penn  v.  Lord  Baltimore.  1  Yes.  ^  O.  Code,  sec.  5022. 

444;  Massie  v.  Watts.  6  Cranch.  148;  ^Mathias  v.  Bridge,  McCahon,  118. 

Penn  v.  Hayward,  14  O.  S.  302  and  lo  Butler  v.  Birkey,  13  O.  S.  514. 

cases  cited.  ^^  Mechanics'  Trust  Co.  v.  Cobb,  20 

5  More    V.  Superior  Court,  64  Cal.  S.  W.  Rep.   391  (Ky..  1892);  Webb  v. 

345;  28  Pac.  Rep.  117.  Wright.  2  Bush.  126. 


§§  38,  39.]  VENUE.  39 

of  them  reside.^  It  may,  in  fact,  be  brought  either  in  the 
county  where  the  land  lies,  or  in  the  place  where  one  of  the 
defendants  resides.'-  And  where  all  of  tlie  parties  are  within 
the  jurisdiction  of  the  court,  a  decree  for  the  specific  perform- 
ance of  an  agreement  to  convey  land  lying  in  another  state 
may  be  made.^  But  this  cannot  be  done  where  part  of  the 
defendants  are  non-residents.* 

Sec.  38.  Where  the  cause  of  action  arose. —  An  action  for 
the  recovery  of  a  fine,  forfeiture  or  statutory  penalty,  except- 
ino-  that  imposed  for  an  offense  committed  on  a  river,  water- 
course or  a  road  which  is  the  boundary  of  a  state  or  of  two 
or  more  counties,  or  against  a  public  officer  for  an  act  done 
by  him  by  virtue  of  or  under  color  of  his  office,  or  for  neg- 
lect of  his  official  duty,  or  on  the  bond  of  an  official,  shall  be 
brought  in  the  county  where  the  cause  of  action  arose.  Under 
the  exceptions  given  an  i,ction  may  be  brought  in  any' county 
bordering  on  such  river,  water-course,  or  road,  or  opposite 
to  the  place  where  the  offense  was  committed.'  There  is  also 
another  exception  allowing  the  attorney -general  of  the  state  to 
brinff  an  action  on  behalf  of  tlie  state  in  the  countv  where  the 
capital  is  located,  even  though  none  of  the  defendants  reside 
there.*"  It  is  needless  to  undertake  an  extended  review  of  ad- 
judications which  fall  under  this  head,  as  questions  of  venue 
of  actions  falling  within  this  class  must  be  determined  by  the 
facts  of  the  particular  case. 

Sec.  39.  Against  domestic  corporations.— Actions  against 
a  corporation  may  be  brought  in  the  county  in  which  the  cor- 
poration is  situate  or  has  its  principal  place  of  business,  or  in 
which  the  corporation  has  an  office  or  agent,  except  actions 
for  the  recovery,  partition  or  sale  of  property,  or  to  compel 
the  specific  performance  of  a  contract  of  sale  of  real  estate, 
or  for  the  recovery  of  a  fine,  forfeiture  or  penalty.  But  an 
action  ma}"  be  brought  against  an  insurance  company  in  the 
county  in  which  the  cause  of  action,  or  some  part  thereof, 
arose.  Or  if  it  be  a  mining  corporation  the  action  may  be 
brought  in  any  county  where  such  corporation  owns  or  oper- 

1 0.  Code,  sec.  5024  *  Id.    See,  also.  Boswell  v.  Sharp,  15 

2  Owens  V.  Hall,  IS  O.  S.  571.  O.  447. 

3  Penn   v.  Hay  ward.  14  O.  S.  303 ;  5  o.  Code,  sec.  5025. 
Biirnlev  v.  Stevensou.  24  O.  S.  474.  6  State  v.  Newtou.  26  O.  S.  200. 


40  Yi:NUB.  [§  40. 

ates  a  mine,  and  the  cause  of  action,  or  some  part  thereof, 
arose.^  An  action  may  be  brought  upon  a  life  insurance 
policy  issued  by  a  company  organized  within  the  state  in  the 
county  where  the  death  of  the  person  insured  occurred,-  or  in 
the  county  where  the  cause  of  action  arose,  even  though  it 
has  no  agent  there. ^  "Where  a  mining  company  does  business 
in  one  county  and  has  an  office  in  another,  it  may  be  sued  in 
the  latter  county.* 

Sec.  40.  Against  railroad  and  otlier  companies. —  An  ac- 
tion against  the  owner  or  lessee  of  a  line  of  mail  stages,  or 
other  coaches,  for  an  injury  to  person  or  property  upon  the 
road  or  line,  or  upon  a  liability  as  carrier,  and  an  action  against 
a  railroad  company,  may  be  brought  in  any  county  through 
or  mto  which  such  road  or  line  passes.'  A  railroad  company 
may  be  sued  in  any  county  through  or  into  which  its  road 
passes  without  regard  to  the  nature  of  the  cause  of  action.^ 
An  action  for  services  may  be  brought  against  it  in  any 
county  where  it  has  an  office  or  place  of  business,  or  where 
any  person  resides  upon  whom  process  may  be  served,"  The 
provision  that  a  railroad  company  may  be  sued  in  any  county 
where  an  injury  occurs  is  permissive  and  cumulative,  and 
therefore  not  exclusive,® 


'  O.  Code,  sec.  5026.  Service  of  summons  upon  a  foreign 

'■^Insurance  Co.  v.  Pyers,  36  O.  S.  railway  company  cannot  be  made  by 

544.  serving  the  writ  upon  a  mere  travel- 

3  Insurance  Co.   v.   McLimaus,  28  ing  solicitor  of  business    for    such 
Neb.  653  (1890).  company.     Wilson  v.  Railroad   Co., 

4  Dade  Coal  Co.  v.  Haskett,  83  Ga.  16  W.  L.  B.  6.     Service  may  be  made 
549  (1890).  upon  a  foreign  corporation  by  serv- 

5  0.  Code,  sec.  5027.  ing  a   managing  agent   within  the 
« Railway  Co.  v.   Jewett,    37   O.  S.  state    (R.    S.,   sec.  5046 ;    American 

649.     As  to  service  on  railroad  com-  Express  Co.  v.  Johnson,  17  O.  S.  641), 

pany,  see  Railway  Co.  v.  McLean,   1  and  upon  the  general  freight  agent 

O.  C.  C.  112.     A  service  of  summons  of    a   foreign  railroad   corporation. 

on  a  regular  ticket  and  freight  agent  Transportation  Co.  v.  Railroad  Ca,  1 

at  and  in  charge   of  an   established  C.  S.  C.  R.  311.     See  Gibbon  v.  Coal 

station,  the  road  being  in  the  hands  Co.,  3  C.  S.  C.  R.  7.5. 

of  a  receiver,  and  such  agent  having  ''  Railroad  Co.  v.  Spellbring,  1  Ind. 

been   designated  and  appointed   by  App.  167  (1890). 

the    receiver,   is    not    good   service.  s  Williams  v.  Railway  Co.,  16  S.  E. 

Railroad  Co.  v.  Orme,  1  O.  C.  C.  511-  Rep.  303  (Ga.,  1892), 


§§  41,  42.]  VENUE.  41 

Sec.  41.  Action  against  non-residents. —  An  action  other 
than  those  specially  provided  for  ^  against  a  non-resident  or  a 
foreign  corporation  may  be  brought  in  a,ny  county  in  which 
there  is  property  of  or  debts  owing  to  the  defendant,  or  where 
the  defendant  may  be  found.^  If  a  foreign  insurance  com- 
pany, it  may  be  brought  in  a  county  where  the  cause  or  some 
part  thereof  arose."  The  words  "  foreign  corporation  "  do  not 
include  a  corporation  created  by  the  laws  of  the  state  and 
located  therein.^  Nor  is  the  provision  necessarily  confined  to 
an  insurance  company,  but  may  apply  to  any  foreign  corpora- 
tion which  may  be  found  in  the  state  and  sued  in  any  county.^ 
But  if  the  defendant  cannot  be  found  and  personally  served, 
jurisdiction  can  only  be  acquired  by  publication.^  And  where 
the  action  is  connected  with  the  business  of  an  office  of  a  for- 
eign corporation  located  in  a  particular  county  it  may  be 
brought  there ; '  or  where  all  the  defendants  are  non-residents, 
suit  may  be  brought  in  any  county.^  If  a  foreign  corporation 
makes  a  contract  in  a  county  where  it  has  an  office,  but  which 
is  to  be  performed  in  another  county,  a  cause  of  action  for  its 
breach  arises  in  the  latter  county.^  Where  both  plaintiff  and 
defendant  are  non-residents,  suit  may  be  brought  in  anv 
county  in  which  the  defendant  may  be  found.^^  A  suit  against 
a  foreign  corporation  need  not  be  brought  where  an  agent 
resides,  but  may  be  commenced  in  any  county  and  the  writ 
directed  to  the  county  where  the  agent  resides.'^  An  action 
for  damages  for  negligenca  may  be  brought  in  any  county 
where  the  defendants  or  any  one  of  them  reside  or  may  be 
served.^- 

Sec.  42.  Other  actions.—  After  enumerating  the  various 
causes  of  action  and  their  venue,  the  code  provides  that  "every 

1  O.  Code,  sees.  5022-25 ;  ante,  sees.  7  Debb j  v.  Dalton,  34  N.  E.  Rep. 
35-40.  236  (Ind.,  1893). 

2  0.  Code,  sec.  5030;  Williams  v.  ^  Estill  v.  Railroad  Co.,  41  Fed.  Rep. 
Welton,  28  O.  S.  451.  849- 

»  O.  Code,  sec.  5030.  9  Equitable  Mortg.  Co.  v.  Wedding- 

4  Boley  V.  Insurance  &  Trust  Co.,  ton,  21  S.  W.   Rep.  576  (Tex.,  1893). 
12  O.  S.  189.  "'Bryant  v.  McClure,  44  Mo.  App. 

5  Handy  v.  Insurance  Co.,  37  O.  S.  553. 

371.  11  Stone  v.    Insurance  Co.,  78  Mo. 

6  Williams  v.  Welton,  28  O.  S.  451.    655. 

12  Drea  v.  Carrington,  32  O.  S.  595. 


4i>  VENUE.  [§  43. 

other  action  may  be  brought  in  the  county  in  which  a  defend- 
ant resides  or  may  be  summoned,  excepting  those  in  the  next 
succeeding  section."^  It  frequently  happens  that  two  de- 
fendants reside  in  different  counties,  in  which  case  an  action 
mav  be  brought  in  thecountvin  which  either  resides,  and 
service  made  upon  the  other  in  the  county  in  which  he  resides. 
This  occurs  most  frequently  in  commercial  transactions.  The 
rule  is  stringent,  and  justly  so,  that  in  order  to  give  juris- 
diction over  the  defendant  residing  in  a  county  other  than 
that  in  which  the  action  is  brought,  he  must  have  a  real  or 
substantial  interest  in  the  subject  of  the  action  adverse  to  the 
plaintiff.^  If  it  be  shown  that  the  one  residing  in  the  county 
where  the  action  is  brought  is  not  liable,  then  the  other  de- 
fendant should  be  dismissed.^  It  has  been  held  that  an  action 
to  enforce  a  stockholder's  liability  cannot  be  brought  in  a 
county  where  none  of  the  defendants  reside,  even  though 
one  of  them  acknowledges  service.* 

Sec.  43.  By  and  against  administrators,  executors,  etc. — 
An  action  may  be  brought  against  an  administrator,  executor, 
guardian,  or  trustee,  in  the  county  where  he  was  appointed  or 
resides  or  may  be  summoned.^  It  is  said  that  an  action  by  an 
executor  for  the  price  of  bank  stock,  or  to  specifically  enforce 
a  contract  of  sale,  is  transitory  and  not  local.'*  although  in  a 
very  early  case  in  Ohio  it  was  held  that  no  such  division  as 
local  and  transitory  actions  was  recognized.'  A  suit  by  an 
adminibtrator  for  the  sale  of  lands  should  be  brought  in  the 
county  where  the  appointment  was  made,  although  the  land 
is  in  another  county;^  but  an  action  ufjon  the  bond  of  an  ad- 

1 0.  Code,  sec.  5031 ;  sec.  43,  pos^        county  where  some  of  them  reside. 

2  Allen  V.  Miller,  11  O.  S.  374.  Mathias  v.  Pridham,  20  S.  W.  Rep. 
Where  one  of  two  defendants  in  a     1015  (Tex.,  1892). 

county  where    suit    is   brought  ac-  sq.  Code,  sec.  5031 :  Osborn  v.  Lidy, 

knowledges  service,  a  writ  may  be  510.  S. — ;  Steel  v.  Burgert,  1  Clev. 

issued  for  another  defendant  in  an-  Eep.  377. 

other  county.     Hendricks  v.  Fuller,  6 Trimble  v.  Lebus,  23  S.  W.  Rep. 

7  Kan.  331.  329  (Ky..  1893). 

3  Dunn  V.  Hazlett.  4  O.  S.  435.  "Geuin  v.  Grier.  10  O.  210  (1840); 
-•  Lamont  v.  Insurance  Co.,  10  W.  Railroad  Co.  v.  Morey.  47  O.  S.  207. 

L.  B.  413  (C.   S.   C.  R,).     It   may   be        » Walker  v.  Yowell,  21  S.  W.  Rep. 
maintained  against  the  stockholders    873  iKy.,  1893;. 
jointly  under  the  Texas  statute  in  the 


§  44.]  VENUE.  43 

ministrator  is  properly  brought  in  the  county  of  the  residence 
of  the  parties,  and  not  in  the  county  of  the  administration.' 

Sec.  44.  Change  of  venue. —  A  change  of  venue  may  be  had 
to  an  adjoining  county  where  it  appears  that  a  fair  and  im- 
partial trial  cannot  be  had  in  the  county  where  the  suit  is 
pending.  It  may  be  made  from  one  superior  court  to  another 
superior  court,  or  to  the  court  of  common  pleas  of  an  adjoin- 
ing county.-  A  change  of  venue  may  be  had  when  the  judge 
is  interested  in  the  cause,^  which  must,  however,  be  a  pecun- 
iary interest  in' the  result  of  the  trial.*  An  objection  that  the 
removal  is  not  to  the  nearest  county  must  be  taken  before 
trial,  otherwise  it  is  waived.^  An  application  for  a  change  of 
venue  because  of  the  undue  influence  of  the  plaintiff  over  the 
inhabitants  of  the  district  is  addressed  to  the  discretion  of  the 
■court;"  in  fact  in  any  case  the  power  to  change  the  venue 
in  a  civil  action  rests  to  a  great  extent  in  the  sound  discretion 
■of  the  court,  depending  upon  circumstances,  and  should  be 
upon  clear  and  satisfactory  proof." 

'Stewart  v.  Morrison,  81  Tex.  396.  ^Skelly  v.  Bank,  9  0.  S.  606. 

2  0.  Code,  sec.  5032.     A  corporation  «Bigelow  v,  Wilson,  54  N.  W.  Rep. 

may  have  a  change  of  venue.     See  465  (la.,  1893). 

•Code.  sec.  5033.  "Bank  v.  Ward,  11  O.  128;  Utsey 

8  R.  S.,  sec.  550 ;  84  O.  L.  129 :  Bar-  v.  Railroad  Co..   17  S.  E.  Rep.   141 ; 

nett  V,  Ashmore,  31   Pac.    Rep.  466  Vaughn    v.    Hixon,    50    Kan.    773; 

(Wash..  1892).  Fletcher  v.  Stowell,  17  Col.  94.    Ti>e 

estate  ex  rel.  v.  Winget,  37  O.  S.  privilege  may  be  waived.     Fletcher 

153.     When  a  stockholder,  Gregory  v.  Stowell.  Hupra. 
^.  Railroad  Co.,  4  O.  S.  675. 


CHAPTER  5. 


THE  PETITION,  INCLUDING  SOME  GENERAL  RULES  OF 
PLEADING. 


Sec.  45.  Pleadings  defined. 

46.  What  pleadings  allowed. 

47.  Construction  of  pleadings. 

48.  Formal  requisites  of  petition. 

49.  Same  continued  —  Verifica- 

tion. 

50.  Statement  of  facts. 

51.  Conclusions   of  law   should 

not  be  pleaded. 
53.  Material  allegations. 

53.  Pleading    statutes  —  Some 

judicially  noticed. 

54.  Other  matters  judicially  no- 

ticed. 

55.  Presumptions  of  law  should 

not  be  stated. 

56.  Redundant    and    irrelevant 

matter. 


Sec.  57.  Attaching  copies. 

58.  Pleading  by  copy. 

59.  Pleading    conditions  prece- 

dent. 

60.  Attaching  interrogatories. 

61.  Objections    to    interrogato- 

ries. 

62.  Same  —  Answer. 

63.  Motion  to  strike  out  inter- 

rogatories. 

64.  Substitution    of    copies   for 

lost  papers. 

65.  Motion  to  substitute  lost  pa- 

pers. 

66.  Demand  for  relief. 

67.  Rule  days. 


Sec.  45.  Pleadings  defined. —  Pleadings  are  the  written 
statements  by  the  parties  of  the  facts  constituting  their  re- 
spective  claims  and  defenses;  all  fictions  are  abolished,  and 
the  title  of  a  cause  shall  not  be  changed  at  any  time,  except 
when  a  defendant  prosecutes  error.'  A  pleading  is  the  state- 
ment of  the  facts  in  a  logical  and  legal  form,  which,  consti- 
tute a  cause  of  action. 

Sec.  46.  What  pleadings  allowed. —  The  only  pleadings; 
allowed  under  the  code  are  the  petition,  demurrer  and  answer^ 
which,  when  affirmative  relief  is  demanded  therein,  may  be 
styled  cross-petition,  and  reply.-  Only  the  more  general  prin- 
ciples and  rules  are  discussed  in  this  chapter,  which  are  appli- 
cable alike  to  all  particular  actions. 

Sec.  47.  Construction  of  pleadings. —  When  codes  were 
adopted  new  methods  of  construction  of  pleadings  were  also- 

'O.  Code,  sec.  5058.  ^O.  Code,  sec.  5058. 


§  47.]  THE    PETITION,  ETC.  45 

adopted.  It  was  enacted  that :  The  allegations  of  a  pleading 
shall  be  liberally  construed,  with  a  view  to  substantial  justice 
between  the  parties.^ 

While  the  common-law  rule  that  pleadings  must  be  con- 
sidered most  strongly  against  the  pleader  has  been  abrogated, 
under  the  present  system  it  is  not  necessary  to  consider  every 
equivocal  word  or  phrase  most  strongly  in  favor  of  the  pleader ; 
but  the  meaning  must  be  fairly  ascertained  with  regai-d  to 
technical  rules  from  the  whole  pleading,  giving  to  legal  and 
technical  words  their  ascertained  meaning,  unless  the  text 
shows  that  they  were  used  in  some  other  sense.-  While  the 
hand  of  innovation  has  done  its  work  upon  the  old  sj'stem  so 
far  as  forms  are  concerned,  yet  we  must  think  and  act  very 
largely  in  the  old  terms  and  actions.^  The  object  of  pleading 
is  to  reach  a  specific  and  definite  issue  upon  a  material  fact 
constituting  the  subject-matter  of  dispute,  which  should  be 
done  in  their  logical  order,  with  clearness  and  p^ecision.^  The 
character  of  a  pleading  should  be  determined  by  its  allega- 
tions, not  by  any  name  which  may  be  given  it.'  The  aver- 
ments should  be  consistent."  The  facts  alleged,  when  material, 
will  always  control  rather  than  the  conclusions  of  the  pleader.^ 
A  petition  w-hich  has  been  attacked  after  answer  filed,  because 
it  does  not  state  facts  sufficient  to  constitute  a  cause  of  action, 
should  be  liberally  construed.^ 

A  pleading  must  not  only.be  judged  by  its  general  scope," 
but  the  language  used  must  be  given  a  reasonable  and  fair 
construction.  If  it  can  be  construed  so  as  to  withstand  a  de- 
murrer, the  same  should  be  overruled.  This  is  not  incon- 
sistent with  the  rule  that  when  doubts  arise  upon  pleadings, 

1  Code,  sec.  5096 ;   Stoutenburg  v.        5  Cincinnati  v.  Cameron,  33  O.  S. 
Ly  brand,  13  O.  S.  228-33.     They  must    336. 

be  fairly  and  reasonably  construed,  ''Rutledge  v.  Railway  Co.,  110  Mo. 

not  strictly.    McCurdy  v.  Baughman,  312. 

43  O.  S.  78 ;  Crooks  v.  Finney,  39  O.  '  Spargur  v.  Roman,  57  N.  W.  Rep. 

S.  57 ;  Robinson  v.  Greenville,  43  O.  523  (Neb.,  1894). 

S.  625.  s  Robbins  v.  Barton  Bros.,  50  Kan. 

2  Robinson  v.  Greenville,  42  0.  S.  120. 

625.  9Rolet  v.  Heinman,  120  Ind.  511; 

SBiddle  v.  Boyce,  13  Mo.  532.  Bank  v.  Root,  107  Ind.  224;  Railway 

4  Railroad  Co.  v.  Wilson,  31  O.  S.  Co.  v.  Schmidt,  106  Ind.  73. 

555-9. 


46  THE    PETITION,  ETa  [§  48. 

or  where  they  are  ambiguous,  they  are  to  be  construed  most 
strongly  against  the  pleader.'  Although  the  language  must 
be  construed  in  its  popular  and  ordinary  meaning,  that  mean- 
ing must  conform  substantially  to  the  proof.- 

Sec.  48.  Formal  re({iiisites  of  petition. —  The  first  requi- 
site of  a  petition  is  that  it  shall  contain  the  name  of  the  court 
and  the  county  in  which  the  action  is  brought.'  Under  the 
old  practice  the  omission  of  the  name  of  the  court  was  a  fatal 
defect;^  but  a  mistake  in  its  designation,  or  an  omission  of 
the  style  or  name,  is  now  regarded  as  an  immaterial  clerical 
error,^  and  may  be  corrected  on  motion,^  but  cannot  be 
remedied  by  a  demurrer."  A  sabstantial  compliance,  however, 
with  this  provision  will  answer.**  So,  where  the  name  of  the 
court  is  given,  but  the  name  of  the  county  is  inadvertently 
omitted,  it  will  le  sufficient,^  and  the  petition  may  be  amended 
so  as  to  cure  the  defects  in  this  respect  at  an}"  time,  even  after 
answer.^**  It  is  not  essential  that  any  particuhir  place  within 
a  county  be  named. '^  The  names  of  the  parties  to  an  action 
must  be  stated,  followed  by  the  word  "  petition." '-  This  means 
that  the  names  of  all  of  the  parties  plaintiff  and  defendant 
shall  be  stated  in  the  caption,  and  here  will  probably  arise  the 
most  important  feature  of  what  may  be  termed  the  formal 
requisites  of  a  petition.  It  is  said,  however,  that  a  slight  vari- 
ance in  the  spelling  of  the  names  is  immaterial;'^  nor  will  a 
petition  which  omits  the  name  of  the  plaintiff  and  defendants 

1  State  V.  Casteel,  110  Ind.  174;  Lowry  v.  Dutton/iSInd.  473;  Co o.lall 
Railway  Co.  v.  McDaniels,  32  N.  E.  v.  Mopley,  45  Ind.  355 ;  Ewing  v. 
Rep.  728  (Ind.,  1892).  Hatfipll  17  Ind.  513. 

2  Hill  V.  Supervisor,  10  O.  S.  G21.  ^Ammeruian  v.  Crosby,    26    lad. 

3  O.  Code,  sec.  5060.  451 :  Pudd  v.  Kramer,  14  Kan.  101 ; 
^  Ward  V.  Springhara,   1  Code  R     Van  Benthyser  v.  Stevenson,  14  How. 

118.  Pr.  70. 

5  McLaran  V.  Morgan,  27  Ark.  148 ;  ^  Blackwell  v.  Montgomery,  1 
Clark  V.  Comford,  12  S.  Rep.  763;  45  Handy,  40.  See  Hotchkiss  v.  Crocker, 
La.  Ann.  —  (1893).  15  How.  Pr.  336. 

6  McLai'an  v.  Morgan,  supra.  ^^  Merrill  v.  Grinnell,  10  How.  Pr. 
^  Blackwell      v.     Montgomery,     1     31 :  Hotchkiss  v.  Crocker,  supra. 

Handy,   40.     It   being  a  matter    of  n  Martin  v.    Martin,    51    Me.   366; 

form,  an  omission  of  the  name  of  the  Bean  t.  Ayers,  67  Me.  48' 

court  cannot  be  reached  by  demurrer  ^-  O.  Code,  sec.  5060. 

where  a   good    cause  of    action   is  i'  Besley  v.  Pease,  24  S.  W.  Rep.  379 

stated.     Smith  v.  Flack,  95  Intl.  121 ;  (Tex.,  1893j. 


§  48.]  THE    PETITION,  ETC.  47 

in  the  caption,  or  the  word  petition,  be  subject  to  a  demurrer ;  * 
nor  will  it  be  stricken  from  the  files  for  the  same  reason. ^ 

There  is  no  rule  more  certainly  and  satisfactorily  settled  or 
understood  than  that  the  full  Christian  and  surname  of  the 
parties  to  an  action  must  be  set  forth;''  and  where  the  full 
Christian  name  does  not  appear  in  the  title  or  elsewhere  it  is 
held  to  be  a"  fatal  defect;^  and  if  not  cured  in  any  manner 
the  petition  will  be  subject  to  a  demurrer.'^  While  it  may  be 
true  that  such  a  defect  is  considered  by  some  authorities  as 
fatal  unless  corrected  in  some  manner,  a  correction  will  al- 
ways be  made  upon  motion  filed  for  that  purpose,^  so  that 
in  any  event,  as  a  matter  of  fact,  it  cannot  be  looked  upon  as 
a  fatal  defect  in  the  strict  sense  of  the  term.  It  is,  however, 
a  loose  and  vicious  practice  to  use  the  initials."  It  is  only 
necessary  to  give  the  names  in  the  caption  of  the  pleading, 
and  they  need  not,  therefore,  be  repeated  in  the  body.^  It  is 
also  specially  provided  that  parties  to  a  written  instrument 
by  initial  letter,  or  a  contraction  of  the  name,  may  be  so  des- 
ignated in  an  action.^  The  initial  letter,  however,  is  consid- 
ered by  some  authorities  as  part  of  the  name,  thus  holding 
that  there  is  a  variance  when  the  name  is  charged  without  a 
middle  initial,  and  the  proof  shows  an  initial  letter.'"     It  is 

•  Blackwell      v.     Montgomery,     1  names  are  properly  stated."    Juris- 

Handy,  40.  diction  is  acquired  over  a  party  even 

-  Hogan  V.  Capener,  1  Clev.  Rep.  though  his  Christian  name  is  wrong 

173 ;  Blackwell  v.  Montgomery,  supra;  and  he  is  so  served.  Lyons  v.  Donges, 

Butcher  v.  Bank,  2  Kan.  70.  1  Disn.  142. 

3  Weisz  v.  Davey,  28  Neb.  566,  569.  «  Elliott  v.  Hart,  7    How.  Pr.  25 ; 

4  Herf  V  Shulze,  10  O.  263.  But  Real  v.  Honey,  58  N.  W.  Rep.  136 ; 
see  Ferguson  v.  Smith.  10  Kan.  402:  Dole  v.  Manley,  11  How.  Pr.  138.  A 
Zvvickey  V.  Haney,  63  Wis.  464,  which  misnomer  cannot  be  noticed  upon 
hold  it  not  to  be  fatal.  demurrer.     Slocum   v.    McBride,   17 

sBascom  v.  Toner,  31   N.  E.  Rep.  O.  607. 

856  (Ind.,  1892).     The  omission  was  '  Kellam  v.  Thomas,  38  Wis.  601. 

held  in  a  dictum  in  Peden  v.  King,  ^Lovvry   v.   Button,    28   Ind.  473; 

30  Ind.   181,   to  be   only  matter  of  E.xpress  Co.  v.  Harris,  120   Ind.  73: 

abatement.     And  in  Bridges  v.  Lay-  21    N.    E.    Rep.    340:   Stubendorf    v. 

man,  31  Ind.  386,  that  the  omission  Sounensclieim,  1 1  Neb.  235. 

of  the  Christian  name  was  irregular  ■'  O.   Code,  sec.  5010 :  Ferguson  v. 

but  not  void.     In  Sherrod  v.  Shirley,  Smith,  10  Kan.  396. 

57  Ind.  13,  the  court  said  on  this  sub-  '^lead  v.  State,  26  O.  S.  505;  Bliss 

jeet:  "This  is  a  fatal  objection  if  on  Code  Pldg.,  sec.  146a.    This  cer- 

not  cui-ed   by  the  process,   amend-  tainly  would  not  apply  to  civil  ac- 

ment,  oi-  by  pleading,  wherein  the  tions. 


4S  THE    PETITION,  ETC.  [§  48. 

also  provided  that  a  plaintiff  who  is  ignorant  of  the  name  of 
a  defendant  may  designate  any  name  and  description,  and 
when  the  true  one  is  discovered  amend  the,  pleading  accord- 
ingly. In  such  cases  it  must  be  stated  in  the  verification  of 
the  petition  that  he  could  not  discover  the  true  name,  and 
the  summons  must  contain  the  words  "real  name  unknown,"^ 
and  it  should  be  averred  that  the  plaintiff  is  ignorant  of  the 
true  name.^  The  ignorance  of  a  plaintiff,  however,  mu3t  be 
real  and  not  wilful,  or  such  as  might  be  removed  by  mere  in- 
quiry or  resort  to  means  of  information  easily  accessible.^  It 
is  also  essential  that  parties  sue  in  their  proper  name,  although 
an  instrument  upon  which  a  suit  is  founded  may  have  been 
executed  by  a  wrong  name;''  and  also  that  the  action  be 
brought  in  the  name  by  which  a  party  is  generally  known,  or 
that  by  which  he  has  been  known  from  boyhood,  although  he 
may  have  at  some  prior  time  had  another  name ;  ^  and  when 
known  equalh'  well  by  two  different  names  he  may  be  sued 
by  either.^  The  words  "  and  others  "  have  been  held  in  error 
proceedings  to  be  sufficient  against  all  of  the  parties  to  the 
record.^  Every  pleading  must  be  subscribed  by  the  part}-"  or 
his  attorney,*  and  the  amount  for  which  judgment  is  demanded 
should  be  indorsed  on  the  summons.^  A  judgment  will  not 
be  reversed  where  the  petition  was  not  signed  by  the  plaintiff 
or  his  attorne}^,  although  the  plaintiff  had  signed  the  affidavit, 
when  no  motion  had  been  made  to  strike  the  petition  from 
the  files;  ^^  nor  when  the  name  of  plaintiff's  attorney  is  printed 
instead  of  written." 


10.  Code,  sec.  5118;    Morgan   v.  111.609;  Becker  v.  Insurance  Co..  68 

Thrift,  2  Cal.  563.     There  must  be  a  111.  412. 

distinct  allegation  that  the  real  name  -^  Cooper  v.  Berr,  45  Barb.  9 :  Don- 
is  ui  kno  vn.  Gardner  v.  Kraft,  52  aldson  v.  Same,  31  W.  L.  B.  102; 
How.  Pr.  499 ;  Crandall  v.  Beach.  7  England  v.  New  York  Pub.  Co.,  8 
How.  Pr.  271.    Where   the  name  is  Daly,  375. 

not  known  but  could  be  ascertained  "^  E;i":leston  v.  Son,  6  Robt.  640. 

by  inquiry,  a  party  cannot  be- sued  "Buckingham  v.  Bank.  21 0. S.  131. 

by  a  fictitious  name.     Rosencrantz  v.  SQ.   Code,    sec.    5102;    Finckh    v. 

Rogers,  40  Cal.  489.  Evers.  25  O.  S.  82 ;  Conn  v.  Rhodes, 

2  Rosencrantz  v.  Rogers,  40  Cal.  489.  26  O.  S.  644. 

3  Rosencrantz  v.  Rogers,  supra.  ^  Id. 

iPinckard  v.  Millmine,  76  111.  453.  loConn  v.  Rhodes,  26  O.  S.  644. 

See,  also,  Board  v.  Greenebaum,  39  n  Hancock  v.  Bowman,  49  Cal.  413. 


I 


§  4:;).j  TlIK    1  EriTION,  ETC.  49 

Sec.  49.  Same  continued  — Yeriftcation.—  Every  pleading 
must  be  verified  by  the  affidavit  of  the  party,  his  agent  or 
attorney,^  except  in  the  case  of  a  guardian  defending  for  an 
infant  or  a  person  of  unsound  mind,  or  an  attorney  of  a  per- 
son imprisoned;  and  in  any  case  where  the  admission  of  the 
truth  of  a  fact  stated  in  a  pleading  might  subject  the  party  to 
a  criminal  or  penal  ])rosecution.-  Pleadings  in  divorce  pro- 
ceedings need  not  be  verified.'  But  when  an  injunction  is 
souo-ht,  a  verification  should  be  made  to  complv  with  the  prac- 
tice  in  injunction  proceedings.  A  verification  on  behalf  of  a 
corporation  may  be  made  by  an  officer  thereof  or  its  agent  or 
attorney.  And  when  the  state,  or  any  officer  thereof  in  its 
behalf,  is  a  party,  it  may  be  made  by  any  person  acquainted 
with  the  facts,  the  attorney  prosecuting  or  defending  the  ac- 
tion.* It  is  no  part  of  the  petition,  but  is  sim})ly  a  proceeding 
required  to  secure  a  truthful  statement  of  facts.^  The  verifi- 
cation may  be  made  by  one  of  several  parties  united  in  inter- 
est,'^ although  this  cannot  apply  to  those  whose  interests  are 
several.'  A  party  in  interest,  even  though  not  a  party  to  the 
record,  may  veriTy.'  The  verification  may  be  made  before  a 
proper  officer,  excepting  an  attorney  of  a  party,*^  and  must 
be  subscribed  and  certified  by  the  officer  before  whom  it  is 
taken. ^"  A  pleading  may  be  stricken  from  the  files  for  want 
of  verification, 1'  although  the  omission  may  be  supplied  by 
amendment,^-  in  which  case  a  new  summons  must  be  issued." 
The  omission  of  the  word  "plaintiff"  in  the  verification  is  im- 

1  O.  Code.  sec.  5102.  ^^  Stevens  v.  White.  1  \V.  L.  M.  394 ; 

2  O.  Code,  sec.  5103.  Warner  v,   Warner.    11    Kan.    121; 

3  O.  Code,  sec.  5697.  Puduey  v.  Burkhart.  62  lud.  179.  A 
■*0.  Code.  sec.  5103.  defective  verification  may  be  waived. 
•^  Meade  v.  Thorne.  2  W.  L.  M.  812.     Hay  ward   v.   Grant,    13   Miuu.   IGo ; 

313;  George  v.  McAvoy.  6  How.  Pr.  Smith  v.  MuUiken.  2  Minn.  319. 

200.                                   '  '-^  White  V.  Freese,  2  C.  S.  C.  R.  30 ; 

6  O.  Code,  sec.  5104.  Boyles  v.    Hoyt.  2  W.   L.   M.   54S; 

'  Gray  v.  Kendall,  10  Abb.  Pr.  66.  Kerns  v.   Roberts.  3  W.  L.  M.  604. 

8  Taber  V.  Gardner.  6  Abb.  Pr.  (N.  S.)  Where  no  verification  has  been  at- 
147.  As  to  verification  by  uon-resi-  tached  or  one  which  is  null  this  can- 
dent,  see  0.  Code,  sec.  5107 ;  by  agent  not  be  done.  Stevens  v.  White.  1  W. 
or  attorney.  Code.  sec.  5109.  L.  M.  394. 

9  Meade  v.  Thorne.  2  W.  L.  M.  312,  i*  White  v.  Freese.  siijira:  Kerus  v. 
313;  Warner  v.V.'amer,  11  Kan.  121.  Roberts,    sujjra;    Stevens   v.  White, 

•a  O.  Code.  sec.  5107.  sii2)rii. 

4 


50  THE   TETITION,  EXa  [§  50, 

material ;  *  and  so  with  a  verification  in  a  petition  upon  which 
judgment  is  authorized  to  be  confessed.^  An  objection  to  a 
verification  cannot  properly  be  raised  on  trial.' 

Sec.  50.  Statement  of  facts. —  It  would  seem  that  the  lan- 
guage of  the  code  that  the  petition  must  contain  "a  state- 
ment of  the  facts  constituting  the  cause  of  action  in  ordinary 
and  concise  lano-uaofe"  would  not  need  much  elucidation.  Yet 
it  is  one  of  the  most  difficult  tasks  to  determine  just  what 
should  be  stated.  There  can  only  be  a  few  well-known  rules 
observed  here,  the  more  detailed  discussion  b^ing  treated  in 
the  chapters  on  the  particular  actions.  A  fact  in  a  pleading 
is  a  circumstance,  act,  event  or  incident.*  The  old  rules  of 
pleading  required  that  it  should  be  stated  when  every  material 
fact  happened.  This  is  only  necessary  under  the  present  sys- 
tem when  time  may  be  the  essence  of  a  contract,  or  the  time 
when  a  fact  happened  is  material.^  And  if  not  so  stated  the 
pleading  will  be  demurrable.®  That  the  allegation  of  owner- 
ship is  the  statement  of  a  fact  can  hardly  be  questioned,"  but 
it  is  not  necessary  to  show  how  title  is  acquired.^  It  is  essen- 
tial that  all  of  the  facts  necessary  to  be  proved  to  make  a  cause 
of  action  should  be  stated,^  which  means  those  facts  which  the 
evidence  upon  the  trial  will  establish  and  not  the  evidence 
which  will  be  required  to  prove  their  existence.'"  A  failure  to 
allege  an  essential  fact  will  prove  fatal,  as  proof  of  any  fact 
not  set  forth  cannot  be  offered.^'  The  petition  must  of  course 
contain  a  caase  of  action  in  favor  of  the  plaintiff.'^     But  there 

1  Lessen!  t.  Wilson,  43  la.  488.  ciety.  84  N.  Y.  330 ;  In  re  Gharky,  57 

2  Bank  v.  Reed,  31  O.  S.  435.  Cal.  274. 

a  Schwarz  v.  Oppold,  74  N.  Y.  307 ;        5  People  ex  rel.  v.  Ryder,  12  N.  Y. 

Payne  v.  Flourney,  29  Ark.  500.  434. 

•»  Drake  v.  Cockroflf,   10  How.  Pr.        « Patterson  v.  Baker,  3  Hun,  398. 
377 ;  Gerrity  v.  Grady.  44  111.  App.        '  Swan's  Pldg.  156 ;  Hume  v.  Watt, 

203.     A  mere  statement  that  an  in-  5  Kan.  40 ;  Commissioners  v.  Young, 

jury  is  irreparable  is  not  the  state-  18  Kan.  444,  445. 
ment  of  any  fact.   Van  Wert  v.  Web-        s  Malcolm  v.  O'Riley,  89  N.  Y.  156. 
Bter.  31  O.  S.  420.     An  averment  of        ^  Prindle  v.  Carruthers,  15  N.  Y. 

reorganization  of  a  corporation  is  a  425-27 ;  Griggs  v.  St  Paul,  9  Minn, 

fact  and  not  a  conclusion  (Hyatt  t.  246. 

McMahon,  25  Barb.  458) ;  and  so  with  lo  Wooden  v.  Strew,  10  How.  Pr.  48. 

an  allegation  as  to  unsoundness  of  ^i  Bailey  v.  Ryder.  10  N.  Y.  363-70. 

mind.     Riggs  v.  Jimerican  Tract  So-  '-  Weidner  v.  Rankin,  26  O.  S.  522; 

Tye  r.  Catching,  78  Ky.  463. 


§  50.]  THE    I'ETITION,  ETC.  .  51 

is  no  teclinical  mode  of  stating  it,  and  according  to  the  code 
it  should  be  in  ordinary  rather  than  technical  lano^uao-e. 
"Whenever  the  rules  of  common-law  pleading  are  in  accordance 
witii  the  code  they  are  still  applicable.^  A  petition,  though 
inartistically  drawn,  which  contains  facts  sufficient,  if  properl}'- 
stated,  to  constitute  a  cause  of  action,  will  support  a  judgment.- 
It  is  still  allowable  pleading  under  the  code  to  state  facts 
according  to  their  legal  effect,  without  giving  evidence,  circum- 
stances, arguments  or  inferences;"  as,  for  instance,  in  stating 
a  cause  of  action  upon  a  contract  of  sale,  or  in  fact  upon  any 
kind  of  a  contract,  it  is  not  necessary  to  state  how  the  sale  or 
the  contract  was  made,  whether  through  an  agent  or  other- 
wise, but  simply  that  the  sale  or  the  contract  was  in  fact  raade.^ 
It  is  essential  that  only  the  ultimate  or  issuable  facts  be 
stated.  Those  facts,  therefore,  which  lie  behind  or  transpire 
before  the  ultimate  one  are  only  probative  and  constitute  the 
evidence;  and  this  has  no  place  in  a  pleading,  tenders  no 
issue,  but  detracts  from  the  simplicity  and  logical  directness 
which  should  be  observed.*  Hence  it  follows  that  the  evi- 
dence, or  rather  evidential  facts,  must  not  be  stated.*  Aeain. 
it  is  held  that  under  our  present  ?.ystem  a  party  should  state 
the  actual  facts  which  raise  a  cause  of  action  in  his  favor 
as  they  occurred,  rather  than  their  legal  effect,''  and  the  plead- 
ing will  not  be  demurrable  because  it  does  not  state  the  leo-al 
effect  thereof.^  In  fact  this  is  pronounced  by  different  writers 
as  the  better  rule."     In  pleading  fraud  the  facts  from  which 

'  Trustee  v.  Odlin,  8  0.  S.  297.  mick,  20  Kan.   107;  Badeau  v.  Niles, 

-  Youngstown  V,  Moore,  30  O.S.  133.  9  Abb.  N.  C.  48;   Ensign  v.  Dickin- 

3  Railroad    Co.    v.    Robinson,    133  son,  19  N.  Y.  S.  438 ;  Hyatt  v.  McMa- 

N.  Y.  242  (1892):  Thayer  v.  Gile,  42  hon,  25  Barb.  458.     a" statement  of 

Hun,  268  (1886);  Boyce  v.  Brown,  7  evidence  can  only  be  justified  when 

Barb.  80  (1849) ;  Gnsper  v.  Adams,  28  it  is  such  that  the  conclusion  of  facts 

Barb.  441;    Brown  v.  Champlin,  66  necessary  to  sustain  the  action  must 

N.  Y.  214-19  (1876).     See  Pomeroy's  inevitably   follow.      Zimmerman  v. 

Code  Rem.,  sec.  537.  Morrow.  28  Minn.  367. 

■*  Sherman  v.  Railroad  Co.,  22  Barb.  "  Barney  v.  Worthington,  37  N.  Y. 

239;  Railway  Co.  v.  Nickless,  73  Ind.  112-16. 

382.  8  Hemmingway  v.   Poucher,  98  N. 

5  Miles  V.  McDermott,  31  Cal.  271;  Y.  281. 

Osborn  v.  Clark,  00  Cal.  622 ;  Cowie  »  Pomeroy's  Rem.,  sec.   537 ;  Bry- 

V.  Toole.  31  la.  513-16.  ant's  Code  Pldg.,  p.  187. 
**  Kansas,   etc.    Ry.   Co.   v.  McCor- 


o2  THE    PETITION,  ETC.  [§  50. 

the  inference  of  fraud  is  derived  may  be  stated  without  des- 
ignating them  as  fraudulent ;  ^  nor  is  it  necessary  to  state  the 
manner  in  which  the  fraud  was  discovered,  as  it  is  no  element 
of  the  action.-  If  an  action  be  founded  upon  a  statute  it  is 
essential  that  every  fact  necessary  to  bring  the  case  within 
the  statute  should  be  stated,*  If  in  any  case  a  petition  does 
not  contain  facts  sufficient  to  constitute  an  action,  merely 
filins:  an  answer  will  not  constitute  a  waiver  of  that  defect/ 
But  it  is  sufficient  if  the  facts  stated  in  the  petition  warrant 
the  judgment,  although  the  grounds  upon  which  it  was  ren- 
dered were  other  than  those  contemplated  by  the  pleader.^ 
It  is  a  fundamental  rule  that  facts  must  be  stated  directly, 
definitely  and  positively,^  only  what  the  party  knows  to  be 
the  truth,  and  not  in  different  forms  to  meet  different  con- 
structions, as  was  formerly  done;'  nor  upon  mere  belief.' 
"When  this  rule  is  violated  the  remedy  is  by  motion  to  make 
definite  and  certain,  and  not  by  demurrer.^  In  some  instances 
where  facts  have  been  defectively  alleged,  and  no  objection 
has  been  made  by  motion  or  otherwise,  they  will  be  cured  by 
the  evidence  and  verdict."^  This  cannot  be  the  case,  however, 
where  allegations  of  material  facts  essential  to  the  mainte- 
nance of  an  action  have  been  omitted.'^  And  where  a  petition 
is  challenged  after  answer  by  an  objection  to  the  introduction 
of  evidence  that  it  does  not  state  facts  sufficient  to  constitute 
an  action,  it  should  be  liberally  construed  for  the  purpose  of 
sustaining  the  same.'-     But  every  material  averment  in  a  pe- 

1  Wliittlesay  v.  Delaney.  73  N.  Y.  STruscott  v.  Dole,  7  How.  Pr.  2^1. 
571.  *  Stoutenburg  v.  Lybrand,  13  O.  S. 

2  Kansas,  etc.  Ry.  Co.  v.  McCor-  228;  Bank  v.  Smith,  36  Npb.  190 
mick,  20  Kan.  107-11.  (1893);  Smith  v.  WoodruflF.  1  Handy. 

3  Brown  v.  Harnian.  21  Barb.  508.        276 ;  Trustee  v,  Odlin,   8  O.   S.   293  ; 
*Farrar    v.    Triplett,    7  Neb.  240;     Louis  v.  Coulter,  10  O.  S.  451 ;  Bank 

O'Donahue  v.  Hendrix,  13  Neb.  255.  t.  Bell,  14  O.  S.   208 ;   Hindman  v. 

5  Wright  V.  Hooker,  10  N.  Y.  51.  Timme,  35  N.  E.  Rep.  1046  (Ind.,  1893j. 
As  where  the  fact  stated  was  an  ac-  i" Railroad  Co.  v.  McCafferj',  72  Ind. 
tion  on  contract,  although  in  form  it  294;  Morrison  v.  Collier,  79  Ind.  411: 
wa's  for  a  conversion.  Conaughaty  Trammel  v.  Chipman,  74  Ind.  474 : 
V.  Nichols,  42  N.  Y.  83.  Railroad  Co.  v.  Noel,  77  Ind.  110. 

6  Stoutenburg  v.  Lybrand,  13  O.  S.  n  Cox  v.  Hunter,  79  Ind.  590. 
228-33;  Bank  v.   Oliver,  1  Disn.  159.  i2Robbins  v.  Barton,  50  Kan.  120. 

"  Dunning  V.  Thomas.  11  How.  Pr. 
281. 


§  51.]  THE    T'ETITION,  ETC.  53 

tition  which  is  not  denied  by  answer  will  be  taken  as  true  for 
the  purpose  of  the  action.'  It  is  also  a  well  established  rule 
that  an  omission  of  a  material  fact  in  the  petition,  or  a  defective 
allegation,  will  be  cured  when  the  same  is  shown  in  the  answer.- 
But  the  allegations  in  an  answer  cannot  cure  defects  in  a  pe- 
tition, where  the  plaintiff  by  reply  denies  the  averments  in  the 
answer.' 

Sec.  51.  Conclusions  of  law  should  not  l)e  pleaded. —  It  is 
a  well  understood  rule  that  facts  only  should  be  pleaded,  and 
not  conclusions  of  law  —  such  facts  as  are  capable  of  proof  and 
will  establish  a  conclusion  of  law.*  A  statement  of  a  conclu- 
sion of  law  is  usually  of  a  right  or  liability  flowing  from  cer- 
tain facts  and  is  subject  to  a  demurrer.^  The  pleader  should 
not  state  propositions  of  law,  or  the  law  upon  which  he 
relies.^  The  rule  is  well  established,  but  the  difficulty  lies  in 
its  application  and  in  determining  what  are  conclusions  of 
law,  so  that  mere  illustrations  need  here  be  given.  For  ex- 
ample, merely  setting  out  a  copy  of  a  contract,  stating  that  a 
defendant  thereby  became' liable, —  the  promise  must  be  al- 
leged.' And  so  Avith  an  allegation  that  a  contract  is  void  for 
want  of  consideration ;  ^  or  a  general  averment  of  the  require- 
ments of  a  statute.^  It  should  not  be  stated  that  a  person  is 
bound  to  do  a  certain  thing  enjoined  by  statute,  but  the  facts 
showing  the  liability  should  be  set  forth.'"  A  general  allega- 
tion that  a  defendant  neglected  and  refused  to  do  an  act  ac- 
cording to  the  terms  of  an  agreement  is  also  a  conclusion.'' 
And  so  with  an  allegation  that  the  defendant  is  indebted  to 
plaintiff  and  that  the  debt  has  not  been  paid : '-  or  that  there 

1  Livesay  v.   Brown,  35  Neb.  112;  276;  Hemmingvvay   v.    Poucher,   9S 
Cobbey  v.  Wright,  34  Neb.  771.  N.  Y.  287. 

2  Barrett  v.  Lingle,  33  111.  App.  91 ;        *  Bean  v.  Ayers,  67  Me.  483. 
Strauss  v.  Trotter,  26  N.  Y.  S.  20;        8  Hammond  v.  Earle,  58  How.  Pr. 
Allen  V.  Choteau.  102  Mo.  309 ;  Sal-  426. 

azar  v.  Taylor,  33  Pac.  Rep.  369  (Colo.,  9  .State  v.  Hudson,  13  Mo.  App.  61. 

1893).  !<»  B.  &  O.  R.  R.  Co.  v.  Wilson,  31 

^  Mossiiess  V.  Insurance  Co.,  52  N.  O.  S.  555. 

W.  Rep.  932  (Minn.,  1892).  n  Wilson  v.   Clarke,  20  Minn.  367; 

4  Baylies'   Pleading:,   sec.    6;  Law-  Van  Schaick  v.  AVinne,  16  Barb.  90 
rence  v.  Wright,  2  Duer,  673;  Clay  (1852). 

Co.  V.  Simonsen,  1  Dak.  T.  403 ;  Ger-  i^  Moore  v.   Hobbs,   79  N.  C.     65; 

rity  V.  Brady,  44  111.  App.  203  (1892).  Butts  v.    Phelps,  79   Mo.   302;  Br.-- 

5  Moore  v.  Hobbs,  79  N.  C.  535.  shears  v.  Strock,  46  Mo.  221 ;  Robe:    ■ 
"People  V.  Commissioners,  54  N.  Y.  v.  Tronihvcll.  50  Cal.  520. 


54  THE    PETITION,  ETC.  [§  52. 

is  nothing  due;*  or  that  a  contract  is  not  in  any  manner  bind- 
ing, or  that  defendant  is  not  liable ;  -  or  that  plaintiff  is  en- 
titled to  the  possession  of  land  and  to  the  rents  and  profits 
thereof;'  or  an  allegation  in  an  action  for  a  personal  injury 
from  a  sidewalk  that  "  then  and  there,  and  long  prior  thereto, 
it  had  been  the  duty  of  said  defendant  to  keep  said  sidewalk 
in  safe  condition; "  *  or  that  a  warrant  is  illegal,  null  and  void 
and  issued  without  authority  of  law ;  ^  or  that  a  certain  thing 
is  illegally  done ; "  or  that  an  attachment  was  illegal,  unau- 
thorized and  void  ; '  or  that  certain  parties  became  subscribers 
to  capital  stock  of  a  corporation  by  signing  and  delivering  an 
agreement  among  themselves;^  or  that  an  assessment  has 
been  increased  by  reason  of  illegal  actions,  frauds  and  irregu- 
larities of  the  officers."  And  so  with  a  denial  that  an  ap- 
praisement was  illegally  and  duly  raade;^*^  or  that  plaintiff  is 
the  actual  legal,  bona  fide  holder  of  a  note."  A  demurrer  will 
not  admit  the  truth  of  conclusions  of  law.^- 

Sec.  52.  Material  allegations. —  A  material  allegation  is 
defined  by  the  code  to  be  one  essential  to  the  claim  or  defense, 
.which  could  not  be  stricken  from  the  pleading  without  leaving 
it  insufficient."  Each  allegation  contained  in  the  petition  when 
not  controverted  by  answer  for  the  purpose  of  the  action  is 
taken  to  be  true ;  ^*  and  so  with  allegations  of  new  matter  in 
the  answer  not  controverted  by  the  reply;  but  not  as  to  new 
matter  in  the  reply,  which  is  deemed  controverted  by  force  of 
the  statute.^^  An  allegation  of  the  execution  of  \vritten  instru- 
ments and  of  the  existence  of  a  corporation  is  taken  to  be  true 

1  Larimore  v.  Wells,  29  O.  S.  13.  ^Sprague  v.  Parsons,  13  Daly,  392 

2  Rolling  Stock  Co.  ▼.  Railroad  Co.,  Hammond  v.  Earle,  58  How.  Pr.  426 
34O.S.450-67;Bankv.  Lloyd,  18  0.  S.  8  Wheeler  v.  Mining  Co.,  9  Nev 
353 ;  Railroad  Co.  v.  Wilson,  31  O.  S.  254. 

555 ;  Railroad  Co.  v.  Walker,  45  O.  S.  «  Knapp  v.  Brooklyn,  97  N.  Y.  520 

53;l  Swart  v.  Schermerhorn,  35  Hun.  281. 

3  Sheridan    v.   Jackson,   72  N.   Y.  lo  Trustees  v.  OdHn,  8  O.  S.  293. 
170;  Scotield  V.  Whitelegge,  49  N.  Y.  "  Downer  v.   Reed,    17   Minn.  493, 
259.  494. 

■JSammins  v.  Wilhelm,  6  O.  C.  C-  12  Patterson  v.  Roach,  32  O.  S.  374; 
565.  Smith  v.  Henry  Co.,  15  la.  385. 

5  In  re  Denny,  10  Nev.  212 ;  Pelton       i^O.  Code,  sec.  5082. 

V.  Bemis,  44  O.  S.  51.  ^*  O.  Code,  sec.  5081 ;  Lumber  Co.  v, 

6  Bowers  v.  Smith,  20  S.  W.  Rep.     Town  Co..  51  Kan.  394. 
101  (Mo.,  1892).  15  O.  Code,  sec.  5082. 


g  53.]  THE    PETITION,  ETC.  55 

unless  denied.^   A  failure  to  plead  a  material  fact  raises  a  pre- 
sumption that  it  does  not  exist.- 
Sec.  53.  Pleading  statutes  — Some  judicially  noticed.— 

It  is  an  established  rule  that  it  is  not  necessary  to  plead  those 
thins-s  of  which  courts  take  judicial  notice.^  A  fact  which  is 
judicially  noticed  is  to  be  regarded  as  matter  of  law,  and 
therefore  cannot  be  pleaded.*  Judicial  notice  will  be  taken  of 
general,  local  or  special  statutes,  which  need  not,  therefore,  be 
pleaded.5  But  judicial  notice  cannot  be  taken  of  the  laws  of  a 
sister  state,**  or  of  a  foreign  country,''  or  of  a  private  statute,^ 
or  of  laws  published  but  not  properly  certified,''  all  of  which 
must  be  specially  pleaded  as  other  facts.  Judicial  notice  not 
being  taken  of  municipal  ordinances,  they  also  must  be  spe- 
cially pleaded  when  made  the  basis  of  a  liability.'"  And  so  with 
a  charter  or  foreign  franchise."  The  following  rules  should 
be  observed  in  pleading  statutes :  In  the  case  of  a  foreign 
statute  it  is  not  necessary  to  set  forth  an  exact  copy,  but  only 
'  its  substance  may  be  stated,  making  such  reference  that  it  may 
be  clearly  identified.'-  It  is  also  essential  that  the  construction 
given  it  b}^  the  courts  of  a  sister  state  be  stated ;  '^  and  no  in- 
quiry can  be  made  as  to  the  correctness  thereof."  If  it  be  claimed 
that  a  law  of  a  sister  state  relieves  a  person  from  a  liability, 

1  Lumber  Co.  v.  Town  Co.,  51  Kan,        s  Railway  Co.  v.  Moore,  33  O.  S.  384 : 
394,  Railroad  Co.  v.  Blackshire.  10  Kan. 

2  Railroad  Co.  v.  Lancaster  Co.,  4    477-87. 

Neb.  307 ;  Cheney  v.  Duulap,  21  Neb.  ^  State  ex  rel.   v.  Kiesewetter,  45 

404,  O.  S.  254. 

3  0.  Code,  sec.  5083.  "'  Ricliter  v.  Harper,  54  N.  W.  Rep. 
*  Cooke  V.  Tallman.  40  Iowa,  133;  768  (Mich.,  1893).    So  with  nuiuicipal 

Shaw  V.  Tobias.  3  N.  Y.  188.  by-laws.    Harker  v.  Mayor,  17  Wend. 

5  Jones  V.  Scudder,  2  C.  S.  C.  R.  178  199 ;  People  v.  Mayor,  7  How.  Pr.  81. 

(1872);  Shaw  v.  Tobias,  3  N.  Y.  188;  »  Devoss  v.  Gray,  22  O.  S.  159. 

Brown  v.  State,  11  O.  280.  Of  acts  of  '-'Minn.  H.  Works  v.  Smith,  54  N. 

incorporation.  Brown  v.  State,  11  O.  W.  Rep.  973  (Neb.,  1893). 

276.     Of  canal  laws.     State  v.  Perry,  i^Smith   v.  Bartram,  11   O.  S.  690; 

W.  662 ;  Division  of  Howard  Co.,  15  Bank  v.  Baker,  15  O.  S.  68 ;  Williams 

Kan.  195.  v-  Finlay,  40  O.  S.  342 ;  WMielan  v. 

6 Shed  V.  Augustine,  14  Kan.  282;  Kinsley,  26  O.  S.  131 ;  James  v.  Rail- 
Railroad  Co.  V.  Lewis,  33  O.  S.  196 ;  road  Co.,  2  Disn.  261-2. 
Williams  v.  Finley,  40  O.  S.  342.  "  Bank  v.  Baker,  15  O.  S.  6a 

'  Evans  v.  Reynolds,  32  O.  S.  163 ; 
Monroe  v.  Douglas,  5  N.  Y.  447. 


56  THE    PETITION,  ETC.  [§  54. 

the  state  of  the  law  when  the  same  is  supposed  to  have  arisen 
should  be  given.^  It  is  not  proper  to  allege  that  under  the 
law  of  another  country  plaintiff  is  entitled  to  relief  hereinafter 
prayed  for.-  In  pleading  a  private  statute  it  should  be  referred 
to  by  its  title  and  date  of  its  passage.^  Every  fact  necessary 
to  show  that  a  case  is  clearly  within  a  statute  should  be  stated.* 
Where  an  action  is  brought  under  a  general  statute  it  is  not 
necessary  to  plead  or  refer  to  the  same  in  any  manner.*  And 
where  the  provision  in  a  statute  restrictive  of  a  rif^ht  of  re- 
covery against  the  defendant  is  in  a  separate  clause  from  that 
giving  the  right  of  action,  it  should  be  introduced  by  the  de- 
fense.^ 

Sec.  54.  Other  matters  judicially  noticed. —  Courts  gen- 
erally take  judicial  notice  of  such  facts  or  conclusions  from  facts 
as  are  not  proper  objects  of  evidence.  This  will  include  mat- 
ters of  public  histoiy  of  the  country,"  civil  divisions  of  the 
state,*  the  executive  of  a  state,^  and  other  public  officers;  ^^'  of 
election  days;"  the  various  arts  and  sciences;  ^-  the  commence- 
ment of  a  term  of  court,  though  not  of  its  duration;  ^^  all  prior 
proceedings  in  a  case  ;^*  the  genuineness  of  the  records  of  a 
court ;^*  seals  of  foreign  states;^**  acts  of  contempt  committed 
in  the  presence  of  the  court; ''  and  of  a  municipal  charter  cre- 

1  Railroad  v.  Lewis,  33  O.  S.  196.  ^Dewees  v.  Colorado  Co.,  32  Tex. 

2  Rieudeau  v.  Vieu,  21  N.  Y.  S.  506.  570. 

3  O.  Code,  sec.  5092 ;  Railway  Co.  V.  i"  People  v.  Johr,  22  Mich.  401; 
Moore,  33  O.  S.  384.  Ragland  v.  Wynn,  37  Ala.  132 ;  Gil- 

4  Austin  V.  Goodrich,  49  N.  Y.  266.  liland  v.  Adm"r,  2  O.  S.  223. 

5  Denver,  etc.  R  R  Co.  v.  DeGroff,  ^  Ellis  v.  Reddin,  12  Kan.  307. 

29  Pac.  Rep.  664  (Colo.,  1892) ;  Clark  i-'Luke  v.  Calhoon  Co.,  52  Ala.  1 15 : 

V.  North  Muskegon,  50  N.  W.  Rep.  254  People  v.  Chee  Kee,  61  Cal.  404  ;  Biif- 

(Mich.,  1891) ;  Hayes  v.  Bay  City,  91  fitt  v.  State,  46  Am.  Rep.  631. 

Mich.  418 ;  51  N.  W.  Rep.  1067  (1892).  ri  Spencer  v.  Curtis,  57  Ind.  221 :  Gil- 

6  Clark  Thread  Co.  v.  Board,  etc.,  liland  v.  Adnvr,  2  O.  S.  223:  David- 
23  Atl.  Rep.  820  (N.  J.,  1892).  son  v.    Peticolas,   34  Tex.    27.      See 

^  Ludlow  V.  Brewster,  3  O.  C.  C.  Kent  v.  Bierce.  6  O,  336. 

82-4 ;  Sperry  v.  Tebbs,  20  W.  L.  B.  '^  Kansas  v.  Bowen,  16  Kan.  475. 

181;    Swinerton  V.  Insurance  Co.,  37  i'> State  v.  Schilling,   14  la.  455-6; 

N.  Y.   174;  Rice  v.  Shook,  27   Ark.  State  v.  Bowen,  16  Knn.  475;  Robiu- 

137 ;  People  v.  Snyder,  41  N.  Y.  397.  son  v.  Brown.  82  III.  279. 

?  Hinckley   v.   Beckwith,    23  Wis.  '♦'Lazier  v.  Westcott,  26N.  Y.  146; 

328;  W.  Lake  Co.  t.  Young,  40  N.  H.  Stauglein  v.  State,  17  O.  S.  463. 

420.  ' '  jNIyers  v.  State,  46  O.  S.  473. 


§^  55,  50.]  THE    rETITION,  ETC..  57 

ated  by  public  act.^  Judicial  notice  cannot  be  taken  of  state- 
ments published  in  the  report  of  a  state  commissioner  of 
railroads,-  ncr  of  the  names  of  navigable  rivers,^  nor  of  facts 
of  recent  occurrence  relating  to  a  particular  section  of  country,^ 
nor  of  municipal  ordinances,^  nor  of  the  width  of  streets  or 
sidewalks  of  a  city,"  nor  of  the  population  of  a  city  according 
to  any  particular  census.^ 

Sec.  55.  Presumptions  of  law  slioultl  not  be  stated. —  Pre- 
sumptions of  law,^  that  is,  whatever  the  law  presumes  to  be  a 
fact,  should  not  be  pleaded.  For  example,  it  is  presumed  that  a 
seal  of  a  corporation  affixed  to  a  deed  was  so  affixed  by  author- 
ity.* And  so  with  official  acts,'**  ownership  of  a  note,''  or  that 
it  is  in  writing,'-  or  that  an  act  of  the  legislature  was  passed  by 
the  requisite  vote.'*  A  presumption  of  death  exists  where  a 
husband  leaves  his  family  and  residence,  and  is  not  heard  from 
for  a  period  of  seven  years. '^  "While  presumptions  of  law  need 
not  be  stated,  this  does  not  apply  to  presumptions  of  fact.'' 

Sec.  56.  Redundant  and  irrelevant  matter. —  The  code 
prohibits  the  insertion  of  redundant,  irrelevant,  scurrilous  or 
obscene  matter  in  a  petition.'^  Redundancy  consists  of  need- 
less repetition  of  material  averments ;  '^  and  matter  incorpo- 
rated into  a  pleading  which  has  no  connection  or  bearing  on 
the  subject-matter  of  an  action  may  be  considered  irrelevant.'^ 
An  answer  may  be  frivolous,  but  not  necessarily  irrelevant.'* 
Allegations  which  are  unnecessar}'-,  yet  qualify  and  restrict 
other  allegations,  so  as  to  show  that  the  plaintiff's  relief  is 
barred,  cannot  be  rejected  on  demurrer  as  surplusage.-''  This 
subject  is  treated  elsewhere.-' 

1  Montgomery  v.  Wright,  72  Ala.       n  Bank  v.  Wadsworth,  24  N.  Y.  "47. 
411.  '  12  Bank  v.  Edwards,    11   How.    Pr. 

-'  Railroad  Co.  v.  Hoffiiines,  46  O.  S.  216. 
643-50.  >3  Steamboat  Northern  Indiana  v. 

3  Raccoon  River  Xav.  Co.  v.  Eagle,  Millikin,  7  O.  S.  383. 
29  O.  S.  238.  ^*  Rosenthal  v.  Mayhugh,  33  O.  S. 

*  Morris  v.Edwards,  1  O.  189.  loo. 

•■* Garvin  v.  Wells,  8  la.  286 ;  Porter       '■*  Draper  v.  Cowles,  27  Kan.  488. 
V.  Warring.  69  N.  Y.  250.  '« O.  Code,  sec.  5087. 

''Porter  T.  Warring,  69  N.  Y.  250.       i' Bowman    v.    Sheldon,    5    Sand. 

■  Bolton  V.  Cleveland,  35  O.  S.  319.  (N.  Y.  Super.)  657-60. 

i^  O.  Code,  sec.  5083.  '"^  Fasnacht  v.  St.-hn,  53  Barb.  650. 

sSheehan  v.  Davis,  17  O.  S.  571.  i^Id. 

10  Reynolds  v.  Schweiuefiis.  27  O.  S.       -OGray  v.  Ulrich.  8  Kan.  113. 
311.  '^  See  post,  sec.  121. 


■58  THE    PETITION,  ETO.  [§  57. 

Sec.  57.  Attachiii;?  copies. —  Despite  the  fact  that  a  dis- 
tinguished jurist  and  author/  while  the  code  was  in  its  in- 
fancy, placed  a  construction  on  sections  5085  and  5086  of  the 
code,  relating  to  attaching  and  pleading  copies  of  written  in- 
struments, which  has  not  since  been  made  clearer  by  any  court 
or  writer,  there  is  at  this  time  considerable  confusion,  diver- 
sity of  practice  and  lack  of  understanding  as  to  these  two 
provisions.  An  attempt,  therefore,  will  here  be  made  to  throw 
such  further  light  upon  the  subject  as  may  be  derived  from 
the  practice  and  experience  of  the  bar,  and  adjudications  in 
those  states  w^iich  have  adopted  the  same  provisions. 

Both  provisions  must  be  kept  in  mind.  The  first  and  the 
one  considered  in  this  section  is:  "When  the  action,  counter- 
claim or  set-off  is  founded  on  an  account,  or  on  a  written  in- 
strument as  evidence  of  indebtedness,  a  copy  thereof  must  be 
attached  to  and  filed  with  the  pleading;  and  if  not  so  attached 
and  filed,  the  reason  for  the  omission  must  be  stated  in  the 
pleading."  ^  The  other,  section  5086,  treated  in  the  next  sec- 
tion, may  be  termed  pleading  by  copy,  as  distinguished  from 
section  5085.  There  is  this  distinction  to  be  observed :  Section 
5085  embraces  accounts  and  written  instruments  as  evidence 
of  indebtedness,  while  section  5086  also  includes  accounts, 
and,  in  addition  thereto,  instruments  for  the  unconditional 
payment  of  money  only.  It  is  therefore  apparent  that  both 
sections  unite  upon  some  instruments  —  that  is,  many  fall 
within  both  provisions.  For  example,  an  account  or  promis- 
sory note  will  come  within  the  purview  of  both  provisions, 
as  an  instrument  as  evidence  of  indebtedness  and  for  the 
unconditional  payment  of  money  only.  But  section  50S5  is 
broader  in  its  terras  and  will  include  all  kinds  of  instruments, 
whether  conditional  or  uncondilioiial,  when  evidencing  an  in- 
debtedness. Here  is  the  point  at  which  the  confusion  and 
diversity  of  practice  have  arisen.  Section  5085  is  imperative 
in  its  provision:  "a  copy  thereof  must  be  attached  to  and 
filed  with  the  pleading;"  while  section  5086  reads:  "it  shall 
be  sufficient  for  a  party  to  set  forth  a  copy  of  the  account 
or  instrument."  This,  however,  was  made  plain  by  Judge 
Swan  many  years  ago  in  the  following  language:     "Some 

»  Swan's  Pleading,  pp.  192-200.  20.  Code,  sec.  5085. 


§  57.]  THE   PETITION,  ETO.  59 

have  supposed  that  the  instruments  named  in  section  122^ 
must  be  copied  into  the  pleading,  and  also  a  copy  annexed  to 
the  same  pleading,  so  as  to  comply  with  both  of  these  sections 
of  the  code."  He  then  adds :  "  This  is  manifestly  a  mistake. 
It  is  absurd  to  suppose  that  the  code  would  require  a  copy  of 
the  instrument  to  be  annexed  and  filed  with  a  ])leading,  for 
the  purpose  of  advising  the  opposite  party  of  the  written  evi- 
dence of  indebtedness  stated  in  the  pleading,  when  a  copy  of 
the  same  instrument  is  incorporated  into  the  pleading  itself."  ^ 
The  text  quoted  from  Judge  Swan  is  now  fully  supported  by 
authority  under  similar  provisions  in  this  and  other  states. 
When  a  note  is  copied  or  pleaded  in  hceo  verba  in  the  petition  in 
the  manner  provided  in  section  5086,  it  is  a  substantial  and 
sufficient  compliance  with  the  section  requiring  a  copy  to  be 
attached.  The  fact  that  a  copy  has  been  incorporated  in  the 
pleading  furnishes  the  reason  for  the  omission  to  attach  a 
copy  as  required  by  the  section  under  consideration.'  The 
direct  question  has  been  before  the  supreme  court  of  the  state 
of  Kansas,  which  state  has  adopted  the  same  provision.*  It 
was  there  held  that  when  a  note  was  set  out  in  full  in  the 
body  of  the  petition,  and  thereby  made  part  of  it,  an  omission 
to  attach  a  copy  was  not  error.  While  technically  it  may  be, 
if  it  is  part  of  the  petition  it  is  not  attached  to  and  filed  with 
it,  and  therefore  the  provision  requiring  a  copy  to  be  attached 
is  not  complied  with;  yet  as  it  does  not  affect  any  substan- 
tial rights  it  will  be  immaterial.' 

The  principal  point  of  difficulty  where  the  confusion  arises, 
is  in  promiscuously  attaching  copies  of  instruments  not  fall- 
ing within  either  section  50S5  or  5086,  being  neither  evidence 
of  indebtedness  nor  for  the  unconditional  payment  of  money 
only,  as  well  as  those  instruments  evidencing  indebtedness 
but  not  for  the  unconditional  payment   of  money  only,  at- 

1  Code,  sec.  5086.  Code,  sees.  124-139.  That  is.  these  two 

-  Swan's  Plead.,  p.  192.  states  have  adopted  in  exact  language 

s  Rouse  V.  Groninger,  2  W.  L.  M.  both  sections  5085  and  5086  of  the 

273;  Phoenix  Ins.  Co.   v.  Stocks,  36  Ohio  code. 

N.  E.  Rep.  408  (III,  1893) ;  Benjamin  »  Budd  v.   Kramer,   14  Kan.   101. 

V.  Delahay,  2  Scam.  574.  Tlie  original  note  instead  of  a  copy 

<Kan.  Code,  sec.  4201   (118).     Ne-  may  be  attached.    Reed  v.  Arnold, 

braska    has    also    adopted   it.     Neb.  10  Kan.  103. 


60  THE    PETITION,  ETC.  [g  57. 

tempting  to  make  the  same  part  of  the  pleading  by  reference, 
and  to  supply  necessary  averments  by  reference  to  copy  at- 
tached. This  may  readily  be  understood  when  it  is  remem- 
bered that  section  50S5,  embracing  accounts  and  instruments 
as  evidence  of  indebtedness,  was  designed  as  a  substitute  for 
the  prayer  of  oyer  at  common  law,  and  as  a  requisition  on 
the  plaintiff  to  give  copies  of  such  instruments  in  advance.^ 
Upon  a  careful  consideration  of  this  provision  the  conclusion 
reached  is,  that  it  has  in  many  cases  been  diverted  from  its 
original  purpose  by  loose  practice  and  partial  acquiescence 
in  the  method  of  attaching  copies  other  than  counter-claims, 
or  set-offs  founded  upon  accounts,  or  instruments  for  the  un- 
conditional payment  of  money  only,  thereby  attempting  to 
supply  the  omission  of  the  proper  averments  in  the  body  of 
the  petition.  In  fact  the  practice  has  been  followed  to  some 
extent  of  attaching  copies  of  instruments  which  do  not  fall 
within  either  section  5085  or  5086,  as  well  as  those  falling 
within  5085  but  not  within  5086,  being  evidence  of  indebted- 
ness, but  not  for  the  unconditional  payment  of  money  only, 
and  making  the  general  averments  which  section  5086  pro- 
vides may  be  made  w^hen  copies  of  instruments  falling  under 
the  latter  section  are  incorporated  into  the  petition.  This 
should  be  pronounced  as  wrong  and  in  disregard  of  the  code 
and  adjudications  thereunder.  This  statement  is  made  with 
knowledge  that  such  a  practice  has  in  a  measure  been  upheld 
by  courts,  but  it  is  supported  b}'"  some  earlier  as  well  as  more 
recent  cases.  The  rule  ma}^  be  safely  stated  that  a  copy  of 
an  instrument  as  evidence  of  indebtedness  which  is  not  for 
the  unconditional  payment  of  money  only,  which  may  be  at- 
tached to  a  petition  under  the  provisions  of  section  5085,  can- 
not be  considered  in  any  sense  as  part  thereof,  and  that  the 

1  Memphis  Med.  College  V.  ]Se\vton,  tliis  respect  it  operates  dilferently 
2  Handy,  163.  See,  however.  Code,  from  the  one  hundred  and  twenty- 
sec.  5298.  "It  was  probably  intended,  second  section  of  the  code,  relating 
so  far  as  it  goes,  as  a  substitute  for  to  pleadings  fouu:led  upon  mere 
oyer  at  common  law."  Swan's  Pldg.,  money  instruments ;  for  the  latter 
p.  202.  And  in  the  next  section  section  by  its  own  provisions  makes 
Judge  Swan  states  on  page  193  of  the  copy  a  part  of  the  pleading,  inas- 
his  work:  "It  does  not  make  the  much  as  the  allegations  in  the  plead- 
copy  annexed  either  a  part  of  the  ing  prescribed  by  that  section  are 
record  or  a  part  of  the  pleadinp'.    In  upon  the  copy." 


§57.] 


THE    PETITION,  ETC. 


61 


allegation  frequently  adopted.  '•  that  a  copy  is  hereto  attached 
and  made  a  part  hereof,"  does  not  and  cannot  make  such  an  ex- 
hibit part  of  a  petition,  and  when  so  attached  does  not  dis- 
pense with  any  of  the  allegations  necessary  to  be  made  to 
constitute  a  cause  of  action.^     The  sufficiency  of  a  petition 


i  Memphis  'Med.  College  v,  Newton, 
2  Handy,  163,  which  was  a  transcript 
of  a  judgment  of  a  sister  state.  Sn 
with  Renuiman  v.  Dean,  2  W  L.  G. 
2  (Cin.  Super.  Ct).  In  Burch  v. 
Young,  2  W.  L.  M,  550.  the  Athens 
district  court  held  that  a  copy  of  a 
note  filed  with  the  pleading  formed 
no  part  of  the  record. 

A  judgment  is  not  a  written  in- 
strument within  the  meaning  of  sec- 
tion (117)  5085.  Cox  V.  Farley,  2  W, 
L.  K   315  (Gallia  Co.  Dist  Ct,  1860). 

Copies  attached  to  and  filed  with 
the  pleading  as  required  by  section 
(117)  5085  form  no  pa'-t  of  it.  Larri- 
more  v.  Wells,  29  O.  S.  16  (1875).  In 
the  latter  case  the  instrument  was  a 
note,  but  it  was  neither  set  forth  nor 
exhibited,  as  it  was  not  in  plaintiff's 
possession. 

In  Byers  v.  Insurance  Co..  35  O.  S. 
'606,  it  was  held  that  where  a  copy  of 
a  policy  of  insurance  was  attached, 
which  was  treated  by  the  parties  as 
part  of  the  petition,  a  reviewing 
■court  would  so  treat  it.  See,  also, 
Smith  V.  Woodruff.  1  Handy.  276. 

In  Crawford  v.  Satterfield.  27  O.  S. 
421,  it  was  held  not  proper  to  either 
copy  into  or  attach  a  copj-  of  an  in- 
strument which  is  not  for  the  uncon- 
ditional payment  of  money  only, 
making  it  a  part  of  it. 

The  substance  or  terms  of  a  bond 
should  be  stated  in  a  petition  in  an 
action  for  its  breach,  and  it  is  not 
sufficient  to  attach  a  copy  and  aver 
8  breach  generally.  The  character 
and  extent  of  the  obligation  must  be 
shown.  Sargent  v.  Moore,  1  Disney, 
99.  It  is  not  an  instrument  for  the 
.payment  of  money  only.     Carring- 


ton  V.  Bay  ley,  43  Wis.  507 ;  Bentley  v. 
Dorcas,  11  6.  S.  409;  West  v.  Dods- 
worth,  1  Disney,  161. 

Ad  attachment  bond  cannot  be 
made  part  of  a  petition.  Seattle 
Crockery  Co.  v.  Haley.  33  Pac.  Rep. 
650  (Wash.,  1893),  or  a  guardian's 
bond.  Clements  v.  Hughes,  17  S.  W. 
Rep.  285  (Ky.,  1891).  But  see  as  to  a 
supersedeas  bond,  Walburu  v.  Che- 
nault,  43  Kan.  352. 

In  Lynd  v  Caylor,  1  Handy.  576, 
it  was  held  that  a  contract  should 
not  be  attached.  An  exhibit  which 
is  referred  to,  not  as  part  of  petition, 
but  as  evidence  of  a  contract,  cannot 
be  regarded  on  demurrer.  Nathan 
V.  Lewis,  1  Handy,  239. 

Judge  Swan  in  his  work  on  Plead- 
ing states :  '•  It  is  not  necessary  to 
allege  in  the  pleading  that  a  copy  of 
the  written  instrument  is  annexed  to 
the  pleading.  It  is  proper  to  do  so, 
and  is  generally  done.  .  .  .  Such 
an  allegation  does  not  make  the  copy 
a  part  of  the  pleading  or  record.  It 
does  not,  therefore,  supply  any  de- 
fects or  omissions  of  allegation  nec- 
essary to  constitute  a  cause  of  ac- 
tion. The  material  parts  of  the 
instrument  should  be  concisely  stated 
or  recited,  or  copied  into  the  plead- 
ing, and  not  left  to  be  gathered  from 
the  copy  attached.  In  fine,  the  plead- 
ing should  be  the  same  as  if  the  copy 
were  not  att;i -lied." 

Gwyune  v.  Jones,  5  O.  C.  C.  298. 
holds  that  no  instruments  but  those 
mentioned  in  section  5086  when  at- 
tached will  be  looked  to  for  the  pur- 
pose of  supplying  the  necessary  aver- 
ments. 

Nothing  fiirtlier  n^ed  be  added  to 


62  THE    PETITION,  ETC.  [§  57. 

founded  upon  any  instrument  not  falling  within  either  sec- 
tion 50S5  or  5086,  or  those  falling  under  5085  and  not  under 
5086,  must  be  determined  by  its  face,  and  not  by  any  accom- 
panying exhibit,  as  it  forms  no  part  of  the  pleading,  and  can- 
not be  considered  in  determining  its  sufficiency  upon  demurrer.^ 

On  the  other  hand  authorities  may  be  found  which  do  not 
agree  with  the  views  already  expressed ;  as,  for  instance,  it 
has  been  held  that  a  telegram  or  other  exhibit  may  be  annexed 
to  and  made  part  of  the  petition.^  And  in  a  recent  case  in 
Nebraska,  whose  code  provision  is  the  same  as  that  under  con- 
sideration, it  was  held  that  an  exhibit  will  be  regarded  upon 
demurrer  as  part  of  the  pleading,  if  the  facts  therein  stated, 
in  connection  with  those  in  the  petition  proper,  show  a  liabil- 
ity.' Yet  the  court  in  delivering  the  opinion  stated  it  to  be 
the  better  practice  to  make  a  direct  statement  of  the  facts  in 
the  order  in  which  they  occur.  This  is  the  direct  and  orderly 
method  wiiich  a  good  pleader  will  observe. 

In  conclusion  the  rule  may  be  restated,  that  no  paper 
should  be  attached  to  a  pleading  as  an  exhibit  except  an  ac- 
count, or  a  counter-claim  or  set-off  founded  upon  an  account, 
or  a  written  instrument  as  evidence  of  indebtedness,  or  for 
the  unconditional  payment  of  money  only,  and  that  only  ac- 
counts or  instruments  for  the  unconditional  payment  of  money 

show  that  the  pleader    should  not  tent,  and  have  included  instruments 

confuse  the  two  sections,  and,  when-  which  do  not  fall  within  the  provis- 

ever  he   chooses,  attach  a   copy,  and  ion    of  either   of   tlie    sections.     In 

adopt  the  averments   permitted   by  Fairbanks  v.  Bloomfield,  2  Duer,  353, 

section  5086  as  to  instruments  fall-  Judge    Duer     said:      "The    safest 

ing  under  that  provision.  course,   under  the  code,   where  an 

1  Merrill  v.  Central  Trust  Co.,  46  action  is  founded  on  an  instrument 
Mo.  App.  337 ;  Bayless  v.  Price,  31  in  writing,  is  to  annex  a  copy  and 
N.  E.  Rep.  88  (Ind.,  1892):  Peake  v.  refer  to  it  as  apart  of  the  complaint." 
Bell,  65  Mo.  224;  Kearn  v.  Insurance  "This  we  hold  to  be  good  practice" 
Co.,  40  Mo.  19;  Curry  v.  Lackey,  35  says  the  city  court  of  New  York  in 
Mo.  389 ;  Pomeroy  v.  Fullerton,  21  Taylor  v.  McLea,  11  N.  Y.  S.  640.  As 
S.  W.  Rep.  19  (Mo.,  1893);  Chatta-  to  attaching  an  ordinance  see  Street 
nooga,  etc.  R.  Co.  v.  Palmer,  89  Ga.  Ry.  Co.  v.  Street  Ry.  Co.,  6  O.  C.  C. 
161.     Cf.  Gwynne  v.  Jones,  5  O.  C.  C.  38.5. 

298.                "  3  Pefiey  v.  Johnson,  30  Neb.  529 ;  46 

2  Sherill  v.  Telegraph  Co.,  109  N.  C.  N.  W.  Rep.  710  (1890),  Maxwell,  J. 
527  (1891);  Caspar!  v.  Portland.  19  This  was  a  cr.se  upon  a  contract  of 
Oreg.  496.     The  lower  courts  in  New  sale. 

York  have  gone  to  a  still  greater  ex- 


§  58]  THE   PETITION,  ETC.  63^ 

can,  when  so  attached,  be  -considered  in  determining  the  suf- 
ticiency  of  a  pleading. 

It  has  been  held  that  an  instrument  as  evidence  of  indebted- 
ness under  section  50S5  must  be  such  an  one  as  will  show  the 
right  to  recover  a  sum  certain,  due  at  a  time  stated  therein.* 
An  evidence  of  indebtedness  may  include  an  instrument 
which  is  not  for  the  unconditional  payment  of  money.  If 
that  be  true,  then  there  are  other  instruments  than  those  for 
the  unconditional  payment  of  money  which  may  be  attached 
as  an  exhibit.  As,  for  instance,  a  contract  may  be  an  evidence 
of  indebtedness,  though  not  for  the  unconditional  payment  of 
money;  or  an  insurance  policy,  or  a  bond, ^  may  fall  in  the 
same  category,  unless  the  restriction  made  by  the  inferior 
court  just  mentioned  ^  be  correct.  In  an  action  to  recover  an 
assessment,  the  ordinance  authorizing  the  same  should  not  be 
attached  as  an  exhibit  or  embodied  in  the  petition;*  and  in  a 
suit  upon  a  foreign  judgment  the  record,  being  matter  of  evi- 
dence, should  not  be  attached,'^  though  it  may  be  proper  ta 
attach  a  transcript  of  a  foreign  judgment.^  The  question  as 
to  attaching  an  insurance  policy  to  a  petition,  thereby  attempt- 
ing to  dispense  with  the  proper  averments  in  the  petition  by 
a  reference  to  the  policy  referred  to  and  made  a  part  thereof,, 
was  brought  directly  before  the  supreme  court  of  Ohio,  but 
was  disposed  of  upon  the  theory  that,  as  there  was  no  objec- 
tion to  the  pleadings  in  the  lower  court,  it  was  not  error  in 
the  reviewing  court  to  treat  the  policy  as  a  part  of  the  peti- 
tion, and  so  the  vital  question  was  not  involved  or  decided.'^ 
The  sufficiency  of  the  reason  for  an  omission  to  attach  a  copy 
must  be  decided  by  the  court,  and  does  not  affect  the  merits 
of  the  action.^ 

Sec.  58.  Pleading  by  copy. —  Some  of  the  principles  discussed 
in  the  preceding  section  are  applicable  to  the  provision  of  the 
code  now  to  be  considered.     The  code  further  provides :  "  In 

1  Woodbridge  r.  Brophy,  2  W.  L.  s  Dougherty  v.  Longmore,  2  C.  S.  C. 

I\I.  274  (1860).                        '  R  134. 

-  Dougherty  v.  Longmore,  2  C.  S.  "  Byers  v.   Insurance  Co.,  35  O.  S. 

C.  R.  134.  006.    To  the  same  effect  as  to  a  note, 

'^Woodbridge  v.  Brophj'',  supra.  see  Andrews  v.  Alpon,  13  O.  S.  351. 

■'  Carney  v.  Kirby,  1  Disn.  479.  ^  Larimore  v.  Wells,  29  O.  S.  13. 

•■'  Jiulds  V.  Dean,  2  Disn.  210. 


64  THE    PETITION,  ETC.  [§  58. 

an  action,  counter-claim  or  set-off  founded  upon  an  account, 
or  upon  an  instrument  for  the  unconditional  payment  of  money 
only,  it  shall  be  sufficient  for  a  party  to  set  forth  a  copy  of 
the  account  or  instrument,  with  all  credits  and  indorsements 
thereon,  and  to  state  that  there  is  due  to  him,  on  such  account 
or  instrument,  from  the  adverse  party,  a  specified  sum,  which 
he  claims,  with  interest;  and  when  others  than  the  makers  of 
a  promissory  note,  or  the  acceptors  of  a  bill  of  exchange,  are 
parties,  it  shall  be  necessary  to  state  the  facts  which  fix  their 
liability."  ^  This  provision  abrogates  the  common  law  and  in 
fact  allows  the  pleading  of  a  legal  conclusion,-  but  with  stat- 
utory sanction.  It  must  be  borne  in  mind,  however,  that  this 
method  of  pleading  can  be  adopted  only  where  the  copy  shows 
all  the  necessary  facts  to  determine  the  liability  of  the  parties. 
And  ii  it  does  not,  as  when  others  than  the  makers  of  a  note 
or  acceptors  of  a  bill  are  parties,  then  all  such  extrinsic  facts 
as  will  fix  the  liability  must  be  allegeJ.  This  provision  con- 
templates that  a  copy  of  any  instrument  such  as  is  provided 
therein, may  be  incorporated  into  and  made  part  of  the  pe- 
tition. A  party  is  only  excused  from  stating  all  the  facts  in 
the  body  of  the  petition,  or  permitted  to  adopt  this  course  of 
pleading  in  actions,  counter-claims  or  set-offs  founded  upon  an 
account,  or  upon  an  instrument  for  the  unconditional  pay- 
ment of  money.'  The  practice  under  this  provision  was  also 
outlined  by  Judge  Swan,  which  may  appropriately  be  quoted  : 
"  It  is  sufficient  here  to  say  that  the  better  practice  is  to  in- 
sert the  copy  in  the  pleading  of  such  money  instruments  as 
are  described  in  section  122,*  whenever  a  party  states  his  cause 
of  action  in  the  manner  allowed  by  that  section;  and  that  if 
it  is  not  so  inserted,  but  attached  and  referred  to  in  the  pleading 
as  annexed,  it  will  also  be  sufficient,  and  the  court  will  in  such 
case  treat  the  annexed  copy  as  a  part  of  the  pleading  itself, 
under  that  section,  inasmuch  as  the  allegations  of  the  plead- 
ing authorized  by  that  section  are  upon  the  copy,  whether  em- 
bodied in  the  pleading  or  annexed,  and  the  copy  therefoi'e 

1  Ohio  Code,  sec.  5086 ;  Kansas  Code,        ^  Evans  v.  Crocket.  3  W.  L,  M.  003. 
sec.    123 ;    Nebraska  Code,   sec.    129    See  sec.  51. 

(4666),  and  New  York  Code,  sec.  534,  -  O.  Code,  sec.  5086 ;  West  v.  Dods- 
are  all  alike.  worth,  1  Disn.  161. 

*  New  Code,  sec.  5086. 


§  58.]  THE    PETITION,  ETC.  65 

necessarily  forms  a  part  of  the  pleading  by  force  of  the  sec- 
tion." ^  This  rule  will  permit  tiie  ])leader  to  adopt  either 
method  he  may  choose,  by  incorporating  into  his  pleading  an 
account  or  an  instrument  for  the  unconditional  payment  of 
money  only  or  attach  a  copy ;  he  should  be  governed  by  the 
nature  of  the  case  as  to  whether  it  should  become  in  full 
part  of  the  petition.^  If  attached  as  an  exhibit,  and  the  short 
form  of  allegation  adopted,  the  same  will  be  considered  part 
of  the  petition  when  construing  the  allegations  thereof.''  And 
it  must  also  be  remembered  that  a  general  allegation  of  in- 
debtedness can  only  be  made  when  all  of  the  facts  necessary 
to  charge  the  party  appear  on  the  face  of  the  instrument. 
The  proper  method  of  pleading  an  action  upon  an  account, 
note  or  instrument  for  the  payment  of  money  is  to  set  forth 
ii  copy  in  the  petition  with  all  the  general  allegations  of  in- 
debtedness when  the  instrument  warrants  it,  and,  as  has  been 
stated  in  the  preceding  section,  the  fact  that  a  copy  is  incor- 
porated into  the  petition  dispenses  with  the  necessity  of  at- 
taching a  copy  of  any  instrument  falling  also  within  the 
provision  of  section  5085.  This  provision,  therefore,  is  free 
from  difficulty  vrhen  the  purpose  of  the  previous  section  is 
made  clear.  When,  therefore,  any  of  the  instruments  included 
herein  show  upon  their  face  the  necessary  facts  to  fix  the  lia- 
bility, then,  as  before  stated,  a  copy  may  be  inserted  and  the 
general  averments  made.  The  instruments  falling  within  this 
provision  must  not  only  be  for  the  unconditional  payment  of 
money  but  must  be  for  that  only;*  and  where  it  is  condi- 
tional and  dependent  upon  outside  facts,  a  complete  cause  of 
action  must  be  set  forth.^  A  transcript  of  a  record  showing 
the  recovery  of  a  judgment  is  not  an  instrument  for  the  un- 

^  Swan's  Pldg.,  p.  193,  oiling  Ohio  421.  SeeSmith  v.  Woodruff,  1  Handy, 

Life  Ins.  Co.  v.  Goodwin,  1  Handy,  276. 

31 ;  Memphis  Med.  College  v.   New-  3  State  v.  School  District,  34  Kan. 

ton,  2  Handy,  165.     Judge  Swan  also  237;  Reed   v.   Arnold,  10  Kan.  103. 

states  in  a  note  that  the  code  com-  See,  also,  Andrews  v.  Alcorn,  13  Kan. 

missioners  in  the  forms  illustrating  351. 

the  pleadings  under  section  122  have  *  Swan's  Pldg.,  p.  183. 

referred  to  the  bill  or  note  as  attached  5  Conklin  v.  Gandall,  1  Koyes,  231 ; 

to  the  petition.  Tooker  v.  Arnoux,  76  N.  Y.  397 

2  Crawford  v.  Satterfield,  27  O.  S. 
5 


66  THE    PETITION,  ETC.  [§§  59,  60. 

conditional  payment  of  money  only;'  nor  is  a  bond,^  or  an 
insurance  policy,'"'  or  a  mortgage,*  or  articles  of  separation  be- 
tween  husband  and  wife  with  a  covenant  to  pay  a  certain  sum 
for  support.^  An  instrument  promising  to  pay  so  much  per 
month  on  the  first  of  every  month  for  a  certain  length  of 
time  also  falls  within  this  provision."  The  method  of  plead- 
ing provided  by  this  section  is  permissive  merely,  and  a 
plaintiff  may,  if  he  so  desire,  state  the  facts  in  a  different 
form,'' 

See.  59.  Pleading  eonditioiis  preeedeiit. —  It  was  necessary 
at  common  law  that  all  facts  which  showed  the  performance 
of  conditions  precedent  be  set  out,  which  rendered  the  sub- 
ject difficult ;  hence  the  salutary  rule  of  the  code  was  adopted 
that  in  pleading  the  performance  of  conditions  precedent  in  a 
contract,  it  should  be  sufficient  to  state  that  the  party  had 
duly  performed  all  the  conditions  on  his  part;  and  if  such  al- 
legation be  controverted  the  party  pleading  must  establish, 
on  the  trial,  the  facts  showing  such  performance.^  A  general 
allegation  of  the  performance  of  conditions  precedent  is  now 
sufficient ;  ^  and  a  petition  which  does  not  aver  a  performance 
or  a  waiver  is  demurrable.^'* 

Sec.  60.  Attaching  interrogatories  —  Discovery. —  The 
subject  of  obtaining  information  from  an  adversary  by  means 
of  interrogatories  attached  to  a  pleading  is  probably  not  so 
well  understood  by  the  younger  practitioner,  owing  to  the 
fact  that  the  treatment  of  the  subject  is  confined  mostly 
to  works  strictly  upon  the  old  chancery  practice,  and  be- 
cause of  the  inclination  not  to  look  further  than  modern 
works  on  code  pleading.     The  provisions  of  the  code  permit- 

1  Memphis  Med.  College  V.  Newton,  ^  Chase  v.  Behrman,  10  Daly,  344. 

2  Handy,  163.  '  Collingwood  v.  Bank,  15  Neb.  118. 

-Bentley  v.  Dorcas,  11  O.  S.  409;  «0.  Code,  sec.  5091. 

West  v.  Dodsworth,  1  Disn.  161 ;  Car-  »  Crawford  v.  Satterfield.  27  O.  S. 

rington  t.  Bayley,  43  Wis.  507.     See  421 ;  Insurance  Co.  v.  McGookey,  33 

ante,  sec.  57,  and  c/.  O.  S.  555 :  Nathan  v.  Lewis,  1  Handy, 

3  Byers  t.  Insurance  Co.,  35  O.  S.  239 ;    Humphreys  v.  Staley,  3  W.  L. 

606.  M.  628.     This  is  true  ouly  when  au- 

*  Peyser    v.   McCormack,   7   Hun,  thorized  by  statute.     Rhoda  v.  Ala- 

300 ;  Rose  v.  Meyer,  1  How.  Pr.  (N.  S.)  meda  Co.,  52  Cal.  350. 

274.  '^  Insurance  Co.  v.  Lindsey,  26  O.  S. 

5  Dupre  V.  Rein,  7  Abb.  N.  C.  286.  348. 


§  60.]  THE   PETITION,  ETC.  67 

ting  parties  to  annex  interrogatories  was  undoubtedly  de- 
signed to  accomplish  the  same  results  as  the  regular  equitable 
proceeding  in  discovery,  as  precisely  the  same  results  are 
accomplished  as  in  the  suit  for  discovery.  Furthermore, 
to  understand  the  method  of  procedure  under  the  code,  the 
doctrine  and  rules  of  discovery  as  established,  by  courts  of 
equity  are  still  in  force  and  applicable  to  the  new  procedure.^ 
And  whilst  the  old  suit  for  discovery  is  now  almost  entirely 
out  of  use,  it  is  still  in  force  and  part  of  the  code.  It  is  not 
adopted  because  a  case  can  hardly  arise  in  which  the  code  in- 
terrogatory will  not  answer.  It  is  an  auxiliary  suit  or  pro- 
ceeding to  aid  in  maintaining  a  legal  right.  As,  for  instance, 
where  a  person  claiming  to  have  a  cause  of  action  or  defense 
to  an  action  commenced  against  him  is  unable,  without  a  dis- 
covery of  a  fact  from  the  adverse  party,  to  file  his  petition 
or  answer,  he  may  bring  his  action  for  discovery,  setting  forth 
in  his  petition  the  necessity  therefor  and  the  grounds  thereof, 
and  such  interrogatories  relating  to  the  subject-matter  of 
the  discovery  as  may  be  necessary  to  procure  the  discovery 
sought."  Generally  Avhen  the  answer  was  obtained,  the  func- 
tion of  the  court  of  equity  was  at  an  end,  although  it  fre- 
quently retained  the  case  and  determined  the  whole  contro- 
versy 2  As  before  stated,  the  other  provision  answers  every 
purpose.  A  party  may  annex  to  his  pleading,  other  than  a 
demurrer,  interrogatories  pertinent  to  the  issues  made  by  the 
pleadings,  which,  if  not  demurred  to,  shall  be  plainly  and  fully 
answered  under  oath  by  the  party  to  whom  they  are  pro- 
pounded, or,  if  such  party  is  a  corporation,  by  the  president, 
secretary  or  other  officer  thereof,  as  the  party  propounding 
requires.*  The  petition  must  show  a  good  cause  of  action, 
and  the  interrogatories  should  be  based  on  some  distinct  alle- 
gation.' They  should  be  confined  to  matters  in  issue,  although 
they  may  cover  every  incident  of  the  facts  alleged ;  and  if 
they  go  beyond  the  scope  of  the  inquiry  of  the  petition,  the 
defendant  may  have  their  propriety  tested  by  his  answer  or 

1  Chapman  v.  Lee,  45   O.   S.   356.  SGrini  v.  Wlieeler,  3  Edw,  Ch.  334; 
See  Nash's  Pldg.,  p.  117.  Bank  v.  Levy,  3  Paige  Ch.  606.    See 

2  0.  Code,  sec.  5293.  Work  v.  Haughton,  1   Disney,  156; 

3  Chapman  v.  Lee,  45  O.  S.  356-365.  Story's  Eq.  Pldg.,  sea  86. 

4  O.  Code,  sec.  5099. 


68  THE    PETITION,  ETC.  [§  01. 

demurrer.^  It  is  an  old  rule  that  the  plaintiff  is  bound  to 
state  what  the  purpose  of  the  discovery  is.-  A  recent  writer, 
however,  states  that  a  defendant  is  bound  to  answer  even 
though  the  interrogatory  is  not  founded  on  a  specific  allega- 
tion.^ They  must  be  material  and  relevant  to  the  issues  tend- 
ered, and  may  be  stricken  out  if  not;*  and  where  a  question 
is  raised  as  to  the  sutficiency  of  the  answer  it  must  be  deter- 
mined by  the  allegations  in  the  petition.^  A  party  is  entitled 
to  his  adversary's  oath  only  as'to  such  material  facts  as  relate 
to  his  own  case,  and  cannot  extend  to  a  discovery  of  the  man- 
ner in  which  the  defendant's  case  is  established,  or  to  the  evi- 
dence which  relates  exclusively  thereto.®  While  the  com- 
plainant may  be  entitled  to  discovery  whenever  he  is  entitled 
to  relief,'  yet  this  cannot  be  so  where  it  would  subject  a  per- 
son to  a  penalty  or  forfeiture,  or  would  cause  a  breach  of 
professional  confidence,  or  where  the  interrogatories  relate  to 
irrelevant  or  immaterial  matters,*  or  where  the  interrogato- 
ries in  fact  amount  to  a  cross-examination.^  It  has  been  held 
that  interrogatories  may  upon  leave  be  annexed  to  a  petition 
already  on  file.^" 

Sec.  61.  Objections  to  interrogatories. —  An    adversary 
may  demur  to  the  interrogatories"  upon  the  grounds  stated 

1  Fuller  V.  Knapp,  24  Fed.  Rep.  100 ;  "This  is  a  fishing  bill  to  know  how 

Bank  v.  Levy,  3  Paige  Ch.  606.  a  man   makes  out  his  title  as  heir. 

-Wigrara  on  Discovery,    pp.   148,  He  is  to  make  it  out ;  but  he  has  no 

149 ;  Devore  v,  Dinsiuore,  4  W.  L.  M.  business  to  tell  the  plaintiff  how  lie  is 

144 ;  Templeton  v.  Morgan,  4  W.  L.  to  make  it  out.'"    See,  also,  Bolton  v. 

M.  146.  Liverpool,  1  Myl.  &  K.  88.     An  ad- 

3  Beach  on  Mod.  Eq.  P.,  sec.  S'S8.  versary  cannot  be  interrogated  as  to 

•*  Druley  v.  Hendricks,  13  Ind.  478 ;  facts  respecting  his  own  title,  but 

Insurance  Co.   v.    Cannon,   48    Ind.  merely  those  with  respect  to  the  title 

264  ;  Beach's  Mod.  Eq.  Pldg.  335,  and  of  the  plaintiff.     Story's  Eq.  Pldg., 

cases  cited.  sees.  317,  846;  Cuyler  v.   Bogert.  3 

^  Story's  Eq.  Pldg..  sec.  36.  Paige  Ch.  186. 

6Downie    v.   Nettleton,   61    Conn.  "  Metier  v.  INletler,  18  N.  J.  Eq.  274. 

593;  Railroad  Co.  v.    Cable  Co.,  88  8  Metier  v.  Metier,  18  N.  J.  Eq.  274 ; 

Va.  932;  Wigram   on    Discovery  of  Cadwallader    v.   Granville,   etc.    So- 

Prop.,  3,   pp.  259.    269   (13  Law   Li-  ciety.  11  O.  292. 

brary).     Lord  Loughborough  said  in  9  Morris  v.  Edwards,  23  Q.   B.  I). 

Reiiison  v.  Ashley,  2  Vesej-,  Jr.  461,  287. 

that  he  "  did  not  like  to  see  a  fishing  i"  Templeton  v,  Morgan,  4  W.  L.  :\I. 

bill  in  court"    Again  in  Ivy  v.  Kek-  146.    See  Davis  v.  Davis,  119  Ind.  'lO. 

ewick,   3    Vesey,  Jr.   679,   he    said :  n  O.  Code,  sec.  5079. 


§  61.]  THE    PETITION,  ETC,  60 

in  the  preceding  section-;  that  is,  upon  the  ground  that  the 
answer  may  subject  the  person  interrogated  to  penal  con- 
sequences ;  or  that  it  is  immaterial  to  the  purposes  of  the  suit ; 
or  will  involve  a  breach  of  some  confidence ;  or  that  the  matter 
sought  to  be  discovered  relates  to  the  title  of  the  person  in- 
terrogated ;  or  that  in  conscience  the  defendant's  right  is  equal 
to  the  plaintiff's.^  The  authorities  are  not  in  harmony  as  to  the 
practice  in  reference  to  the  demurrer.  It  is  held  that  a  de- 
murrer to  the  whole  bill  or  petition  includes  or  extends  both 
to  the  relief  and  discovery;-  and  that  if  a  general  demurrer 
is  held  good  to  the  relief  but  not  to  the  discovery,  it  will  also 
bar  the  discovery,  upon  the  ground  that,  discover}?  being  the 
onJy  means  for  relief,  if  that  cannot  be  granted  then  the  dis- 
covery is  of  no  avail.^  On  the  other  hand,  an  eminent  author 
states  the  rule  to  be,  that  where  the  petition  is  for  relief,  and 
discovery  is  onlv  incidental  thereto,  a  defendant  may  demur 
to  the  relief  and  answer  as  to  the  discovery  sought ;  *  and  if 
it  cannot  be  maintained  as  to  the  relief  it  cannot  be  for  the 
discovery.^  There  can  be  no  question  as  to  the  proposition 
that  a  demurrer  may  be  tiled  to  both  relief  and  discovery,  in 
which  case  it  may  be  a  special  demurrer  to  avoid  the  conflict 
of  decisions,  although  the  doctrine  that  a  general  demurrer 
may  be  filed  is  well  supported.^  Objection  may  also  be  taken 
to  interrogatories  which  are  irrelevant  by  motion  to  strike 
out;^  and  this  may  also  be  done  where  they  are  not  based  on 
any  matter  contained  in  the  pleadings.^ 

1  Beach's  Mod.  Eq.  Pldg.,  sec.  236 ;     lief.     A    general    demurrer    to    the 
Story's  Eq.  Pldg.,  sec.  846.  whole  complaint  will  not  be  upheld 

2  Wigram  on  Discovery,  p.  148.  if  the  discovery  and  relief  be  good  as 
^Metier  v.   Metier,    18    N.   J.    Eq.     to  the  discovery.  Livingston  v.  Same, 

273-4.     In  Miller  v.  Ford,  Saxt.  365,  4  John.  Ch.  294. 

it  was  held  that  when  a  party  is  not  *  Story's  Eq.  Pldg.,  sec.  312. 

entitled  to  relief  he  is  not  entitled  to  ^  Emery  v.  Bidwell,  140  Mass.  271 ; 

a  discovery.     A    defendant    cannot  Verner  v.  Railroad  Co.,  28  Fed.  Rep. 

be  permitted   to  demur  to  the  dis-  581. 

covery  only  and  answer  as   to  the  •>  1  Daniell's  Ch.  Pr.,  star  page  547, 

relief.     1  Daeieirs  Ch.  Pr.,  side  page  and  cases  cited. 

548;  Brownell    v.  Curtis,    10  Paige,  "Railway  Co.  v.  Howard,  124  Ind. 

Ch.  214.     It  is  held  in  Higgenbotham  280;  Stevens  v.  Flannagan,  131  Ind. 

V.  Burnet.  5  John.  Ch.  184,  that  where  122-3. 

the  bill   is  for  discovery   and  relief  ^Templeton   v.  Morgan,   4  W.    I* 

the  defendant  should  answer  as  to  M.  146. 

the  discovery  and  demur  to  the  re- 


70  THE   PETITION,  ETC.  [§§  62-65. 

Sec.  62.  Same —  Answer. —  A  party  may  decline  to  answer 
any  interrogatory  from  which  he  may  protect  himself  by 
demurrer.^  But  in  the  absence  of  a  demurrer  or  other  objec- 
tion the  interrogatories  must  be  plainly  and  fully  answered 
under  oath,  and  may  be  enforced  by  nonsuit  or  judgment  by 
default  as  justice  may  require.^  But  a  nonsuit  cannot  be 
entered  for  failure  to  answer  as  fully  as  the  interrogator 
thinks  he  ought  to  do.'  An  order  may  be  made  that  inter- 
rogatories attached  to  a  pleading  be  answered  by  a  certain 
day  or  stand  dismissed.  But  it  must  be  actually  dismissed  at 
the  time  fixed.* 

Sec.  63.  Motion  to  strike  out  interrogatories. — 

The  defendant  moves  the  court  to  strike  out  the  following 
interrogatories  of  the  plaintiff  attached  to  his  petition  filed 
herein,  for  the  reason  that  the  same  are  irrelevant  and  not 
pertinent  to  the  matters  in  issue,  to  wit:  [State  interrogato- 
ries.'] 

Note. —  See  ante,  sec.  61 :  Railway  Co.  v.  Howard,  124  Ind,  280;  Stevens 
V.  Flannigan,  131  Ind.  12^3. 

Sec.  64.  Substitution  of  copies  for  lost  papers. —  When  a 
pleading  or  other  paper  pertaining  to  the  files  in  a  case  is  lost 
or  destroyed  or  is  withheld,  the  court  may,  upon  application 
of  any  party  to  the  action,  order  a  copy  or  substantial  copy 
thereof  to  be  substituted.^  A  court  cannot  hear  a  cause "  nor 
render  a  judgment  without  pleadings  being  on  file,  either 
original  or  substituted  copies.^  It  is  not  necessary  to  give  any 
notice  to  the  opposite  party  of  the  substitution  of  lost  plead- 
ings.* 

Sec.  65.  Motion  to  substitute  lost  papers. — 

The  plaintiff  [or,  defendant]  now  comes  and  moves  the 
court  for  leave  to  substitute  a  petition  (or  other  papers)  for 

1  Fuller  V.  Knapp,  24  Fed.  Rep.  100.     49  O.  S.  681.     As  to  when  the  inter- 

2  O.  Code,  sec.  5101 ;  Ne\t-burg  Pet.  rogatories  must  be  answered,  see  O. 
Co.  V.  Weare,  44  O.  S.  610 ;  Chapman     Code,  sec.  5100. 

V.  Lee,  45  O.  S.  366 ;  Devore  v.  Dins-  »  O.  Code.  sec.  5084. 

more,  4  W.  L.   M.  144;  Longstreth,  6  Mason  v.  Embree,  5  O.  278.     But 

etc.  Mfg.  Co.  V.  Halsey,  4  O.  C.  C.  see  Hallam  v.  Jacks,  11  O.  S.  692 ; 

307.  Wilkinson  v.  Daniel,  W.  368. 

'  Longstreth,  etc.  Mfg.  Co.  v.  Hal-  "^  Grimison  v.  Russell,  11  Neb.  469. 

sey,  supra.  s  Marks  v.  Harris,  12  W.  L.  B.  184. 

*  Railway  Co.  v.  Cov.struction  Co., 


I  QQ.]  THE   PETITION,  ETC.  71 

the  original  petition  herein,  which  has  been  lost  or  destroyed 
without  plaintiff's  neglect. 

Note. —  Code,  sec.  5084. 

Sec.  66.  Demand  for  relief. —  A  petition  must  contain  a 
demand  for  relief;  if  the  recovery  of  money  is  demanded  the 
amount  sliall  be  stated,  and  if  interest  is  claimed  the  time  for 
which  interest  is  to  be  computed  shall  also  be  stated.^  It  is 
well  understood  that  while  a  demand  for  relief  is  part  of  a 
petition,  it  is  no  part  of  the  statement  of  facts  required  to 
constitute  a  cause  of  action."^  The  entire  omission  of  the  same 
would  not  be  a  ground  for  demurrer,  but  could  only  be 
reached  by  motion,^  and  may  be  amended  to  conform  the  re- 
lief to  the  facts  proved.*  It  will  not  in  any  case  determine 
the  character  of  the  action  or  the  interest  of  the  parties,  which 
must  depend  entirely  upon  the  facts  pleaded.^  The  prayer 
may  be  if  or  equitable  relief,  and  the  facts  alleged  and  proved 
may  constitute  a  legal  cause  of  action."  Where  the  allega- 
tions warrant  legal  relief  only,  the  plaintiff  cannot  have  equi- 
table relief,  and  he  must  bring  his  case  and  proof  within  the 
allegations."  It  has  been  held  that  where  the  facts  stated 
make  a  case  for  specific  performance  of  a  contract  as  well  as 
one  for  damages,  the  plaintiff  is  entitled  to  have  both  tried  if 
necessary  to  obtain  his  rights.^  The  prayer  may  be  for  the 
cancellation  of  an  instrument  as  well  as  for  general  relief,  and 
the  court  may  decree  a  reconveyance  instead  of  cancellation, 
as  equity  will  adapt  its  relief  to  the  exigencies  of  the  case.^*^ 

1 0.  Code,  sec.  5060.  ^ Reed  v.  Reed,  supra;  Williams  v. 

2  Draper  v.  Moore,  3  C.  S.  C.  R.  167 ;  Slote,  70  N.  Y.  601 ;  White  v.  Lyons, 
Corry  v.  Gaynor,  31  O.  S.  377 ;  Phil-  43  Cal.  379.  The  mere  fact  that 
lips  V.  Dugan,  31  O.  S.  466 ;  Culver  equitable  relief  is  improperly  asked 
V.  Rogers,  33  O.  S.  546 ;  Ashley  v.  where  a  good  cause  of  action  is  stated, 
Little  Rock,  56  Ark.  391 ;  19  S.  W.  does  not  make  it  an  equitable  action. 
Rep.  1058;  Hiatt  v.  Parker,  39  Kan.  Brown  v.  Bank.  5  Mo.  App.  1. 
765-771 ;  Pomeroy's  Code  Rem.,  sees.  'Bradley  v.  Aldrich,  40  N.  Y.  504; 
454-57.                   "  Arnold  v.  Angell.  63  N.  Y.  508 ;  Bank 

3  Asliley  V.  Little   Rock,   56   Ark.  v.  Mitchell,  73  N.  Y.  415. 

391 ;  19  S.  W.  Rep.  1058.  » Sternberger  v.  McGovern.  56  N, 

*  Cul  ver  V.  Rodgers,  33  O.  S.  540.  and  Y''.  13. 

cases  cited.  9  Riddle  v.  Roll.  34  O.  S.  573. 

5  Reed  v.  Reed,  35  O.  S.  433 ;  Moore  »i  Murtha  v.  Curley.  90  N.  Y.  373. 
V.  Chittenden,  39  O.  S.  563-71. 


72  THE    Fi;  IITION,  ETC.  [§  Q9, 

Under  a  prayer  for  damages  for  a  breach  of  a  contract  as  well 
as  for  a  reformation  if  necesoary,  the  court  may  give  such 
relief  in  damages  as  may  be  just,  although  the  action  for  refor- 
mation is  not  sustained.!  A  petition  may  ask  for  an  injunc- 
tion and  for  personal  judgment'  or  for  injunction  and  an 
account,^  or  a  prayer  for  personal  judgment  for  an  assessment 
and  for  the  enforcement  of  a  lien.*  Under  the  old  system  re- 
covery was  confined  to  the  case  made  b;/  the  petition  or  bill,^ 
but  the  code  requires  sufficient  facts  to  constitute  a  cause  of  ac- 
tion ;  ^  and  any  relief  regardless  of  the  prayer  consistent  with 
the  case  stated  and  embraced  within  the  issuej  or  consistent 
with  justice  or  justified  by  the  facts,*  may  be  granted.  And 
relief  hostile  to  the  theory  of  the  allegations  should  not  be 
erranted,^  But  where  there  are  two  causes  of  action  and  the 
relief  asked  is  inconsistent  with  only  one,  the  plaintiff  may  be 
compelled  to  elect  upon  which  he  will  rely.^"  .Specific  relief 
need  not  be  asked,  but  if  asked  no  greater  amount  can  be 
granted  without  amendment."  A  petition  which  entitles  the 
plaintiff  to  some  relief  will  be  good  against  a  demurrer ;!-  and 
so  with  a  prayer  for  more  than  the  facts  will  warrant.'^  If 
the  defendant  fails  to  answer  and  judgment  is  taken  by  de- 
fault, the  rule  applicable  to  cases  where  trial  is  had  cannot  be 
invoked,  but  only  such  relief  as  is  demanded  can  be  had."  A 
prayer  for  general  relief  which  is  inconsistent  with  that  for 
judgment  for  a  sum  certain  will  not  be  stricken  out."  A 
prayer  for  relief  may  be  in  the  alternative  where  the  plaint- 

1 N.  Y.  Ice  Co.  V.  Insurance  Co.,  ?  Davidson  v.  Burke,  143  111.  140. 

23  N.  Y.  357.     See  Hale  v.  Bank,  49  9  Graham  v.  Reed,  57  N.  Y.  681. 

N.  Y.  626.  i**  Brundidge  v.  Goodlove.  30  O.  S, 

2Brundidge  v.  Goodlove,  30  O.  S.  374. 

374.  11  Armstrong  v.  St  Louis,  3  Mo.  App. 

3  Converse  v.  Hawkins.  31  O.  S.  209.  100. 

^Corry  V.  Gaynor.  21  O.  S.  277.  12  Baker    v.    Alien,    92    Ind.    101; 

5Ashley  V.  Little  Rock.  56  Ark.  391 ;  Crosby  v.  Bank.  107   Mo.  436;  17  S. 

19  S.  W.  Rep.  1058  (1892).  W.  Rep.  1004  (1891). 

6  Id.  13  Missouri,  etc.  Land  Co.  v.  Bush- 

-<  Ross  V.  Purse,  17  Colo.  24 :  28  Pac.  nell,  11  Neb.  192  (1881). 

Rep.  473  (1891) ;  Stevens  v.  Mayer,  84  ^  Lane  v.  Gluckauf,  28  Cal.  288-94 ; 

N.  Y.   296 ;  Southwick   v.    Bank,   84  Peck  v.  Railway  Co.,  85  N.  Y.  246. 

N.  Y.  420 :  Davidson  v.  Burke,  143  111.  i^  Durant  v.  Gardner,  19  How.  Pr. 

140 ;  Bradley  v.  Aldrich,  40  N.  Y.  504.  94. 


§  67.]  THE   r£TITION,  ETC.  7S 

iff  is  unable  to  state  exactly  the  relief  to  which  he  may  be  ea- 
titled.* 

Sec.  67.  Rule  days. —  Defendant  must  file  an  answer  or 
demurrer  on  or  before  the  third  Saturday,  and  the  reph^  or 
demurrer  by  the  plaintiff  on  or  before  the  fifth  Saturday,  after 
the  return  day  of  the  summons,  or  service  by  publication,^ 
The  rule  day  for  filing  a  petition  in  the  court  of  common 
pleas  in  a  case  appealed  from  a  justice  is  the  third  Saturday 
after  the  expiration  of  the  time  limited  for  filing  the  tran- 
script; and  subsequent  pleadings  shall  be  filed  within  such 
times  thereafter  as  is  provided  for  the  filing  thereof  in  cases 
commenced  in  that  court  after  the  return  of  the  summons.^ 
The  answer  or  demurrer  of  a  defendant  to  a  cross-petition  shall 
be  filed  on  or  before  the  third  Saturday,  and  the  reply  or  de- 
murrer thereto  on  or  before  the  fifth  Saturday,  after  the  cross- 
petition  is  filed.*  Where  an  answer  demands  affirmative  relief^ 
the  plaintiff  becomes  defendant  to  the  cross-petition  and  is  given 
the  same  time  to  plead  as  is  allowed  a  defendant.^  An  answer 
day  in  quo  warranto  is  within  thirty  days  after  the  return 
day  of  the  summons,  and  not  the  third  Saturday.^  A  defend- 
ant is  not  excused  from  filing  his  answer  within  the  rule 
merely  because  the  plaintiff  has  failed  to  comply  with  an 
order  for  security  for  costs."  The  court  or  a  judge  in  vaca- 
tion is  authorized,  for  good  cause  shown,  to  extend  the  time 
for  filing  any  pleading  upon  such  terms  as  are  just.^  A  de- 
fendant shall  have  the  same  time  in  which  to  answer  or 
demur  to  a  petition  which  has  been  amended  as  to  an  origi- 
nal petition.''  It  rests  largely  within  the  discretion  of  a  court 
as  to  whether  or  not  a  pleading  will  be  permitted  to  be  filed 
after  rule  da}'',  but  a  meritorious  answer  should  never  be  re- 
fused."*   The  time  within  which  an  answer  may  be  filed  to  an 

'  See  ante,  sees.   21,    22 ;    Lyke  v.  « O.  Code,  sec.   C.  73 ;  State,  etc.  t. 

Post,  65  How.  Pr.  298.     C/.  Duraut  v.  Robinson,  11  W.  L.  B.  294. 

Gardner,  10  Abb.  Pr.  445.  ^Newsoni  v.  Ran.  18  O.  240, 

2  O.  Code,  sec.  5097.  8  o.  Code,  sees.  5098,  6773.    As  to 

3R.  8.,  sp''.  6598.  interrogatories,  see  Code,  sec.  5100. 

<0.  Code,  sec.  5097.  90.  Code.  sees.  5111,  5112. 

'Kimniell  v.  Pratt,  40  O.  S.  344.  lOHengehold  v,  Gardner,  4  W.  L.  B. 

958. 


74  THE    PETITION,  ETC.  [§  67. 

amended  petition  is  also  within  the  discretion  of  the  court. 
If  no  time  be  fixed,  but  the  case  is  set  for  trial  on  a  specified 
day,  the  action  of  the  court  in  setting  the  case  for  trial  will 
be  construed  in  effect  as  an  order  that  the  issues  be  made  up 
by  that  time.^ 

iNeininger  v.  State,  50  0.  S.  394 


CHAPTER  6. 


THE  ANSWER,  COUNTER-CLAIM  AND  SET-OFF. 


Sec.  68.  General  requisites  of  answer, 

69.  The  specific  denial 

70.  The  general  denial 

71.  Immaterial  allegations  need 

no  denial. 
73.  Denial  on  belief. 
73.  The  negative  pregnant 
74  Sham  denial. 

75.  New  matter. 

76.  Joint  answer. 

77.  Answer  of  guardian  and  at- 

torney. 

78.  Several  defenses. 

79.  Answer  and  cross-petition. 


Sec.  80.  Counter-claim  —  Defined  — 
Nature  of, 

81.  Counter-claim  —  How 
pleaded. 

83,  Counter-claim  —  When  may 
be  set  up  —  Judicial  expo- 
sitions, 

83.  Trial  on  counter-claim. 

84.  Set-oflF, 

85.  What  subject  of  set-off, 

86.  Cross-demands  deemed  com- 

pensated. 

87.  Judgment  upon  default. 


Sec.  68.  General  requisites  of  answer, —  The  same  course 
will  be  pursued  in  treating  the  subject  of  the  answer  as  in 
the  preceding  chapter  upon  the  petition.  As  the  work  is  made 
up  largely  of  special  treatment  of  particular  actions  and  sub- 
jects, answers  are  there  discussed  more  in  detail.  Only  the 
more  general  features,  therefore,  will  be  examined  here.  In 
•doing  so  it  is  difficult  to  add  much  that  is  new,  or  to  improve 
upon  what  others  better  qualified  have  alreadj^  written.  All 
writers  start  out  upon  the  same  basis.  The  answer  shall  con- 
tain :  first,  a  general  or  specific  denial  of  each  material  allega- 
tion of  the  petition  controverted  by  the  defendant;  second,  a 
statement  of  any  new  matter  constituting  a  defense,  counter- 
claim or  set-off  in  ordinary  and  concise  language.^  The  same 
rules  of  verification  are  applicable  here  as  given  in  a  former 
section.^  Prayer  for  relief  is  unnecessary  unless  affirmative 
relief  is  sought.^  The  rules  as  to  the  statement  of  facts,*  con- 
clusions^ and  presumptions  of  law,^  redundant  and  irrelevant 

I O.  Code,  sec.  5070.  *  Ante,  sec.  50. 

2  Ante,  sec.  49.  8  Ante,  sec.  51. 

'  Bendit  v.  Annesley,  27  How.  Pr.        ^  Ante,  sec,  55. 
184. 


76  ANSWER,  COUNTEK-CLADd    AXD    SET-OFF.  [§  69. 

matter,^  and  pleading  conditions,-  as  pointed  out  elsewhere, 
should  be  observed  in  the  preparation  of  the  answer. 

Sec.  69.  The  specific  denial, —  Material  uncontrorerted  al- 
legations are  taken  as  true.'  The  answer  must  therefore  con- 
tain a  general  or  specific  denial  of  each  material  allegation  in 
the  petition.*  A  denial  of  facts,  whether  general  or  special,, 
should  be  direct  and  specific'  What  is  a  specific  denial?  The 
answer  must  depend  largely  upon  circumstances,  though  there 
are  a  few  general  rules  which  have  been  frequently  asserted 
by  courts  and  writers.  It  is  apparent  that  it  was  designed 
that  the  defendant  should  point  out  the  particular  allegations 
denied.  How  well  it  may  be  done  mast  depend  upon  the 
pleader's  skill  in  the  English  language  and  his  legal  acumen. 
There  have  been  many  expressions  of  opinion  upon  a  form  of 
averment  frequently  adopted:  Defendant  denies  each  and 
every  allegation  of  the  petition  not  before  admitted  or  denied. 
It  is  generally  considered  good.^  Another  form  often  used, 
which  upon  a  liberal  construction  has  been  held  good  as 
against  a  demurrer,  is :  "  The  defendant  denies  all  the  mate- 
rial allegations  of  the  petition."  ^  It  does  not  authorize  the 
introduction  of  evidence  tending  to  show  a  special  defense;* 
nor  is  it  a  commendableor  a  proper  form  to  be  followed.^  So 
has  it  been  held  that  merely  denying  "  each  and  every  mate- 
rial allegation  in  the  complaint"  is  evasive  and  not  proper.^" 
A  denial  of  all  and  singular  the  allegations  of  a  petition  is 
also  objectionable,  and  subject  to  a  motion  to  make  definite 
and  certain. ^^  Xor  is  the  refusal  to  admit  certain  allegations 
considered  a  denial,^-  or  a  denial  of  facts  as  alleged  in  the  peti- 

1  Ante,  sec.  56.  sec.  325,  citing  Kiugsley  v.  Gilnian, 

*  A7ite.  sec.  59.  12  Mine.    515;  Leyde  v.  Martin,  16 
8  Livesay  v.  Brown,  52  N.  W.  Rep.     :Miun.  38. 

838  (Neb.,  1892).  7  Lewis  v.  Coulter,  10  O.  S.  451. 

*  O.  Code,  sec.  5070 ;  Creighton  v.  «  Hauser  v.  Metzga,  1  C.  S.  C.  R.  164. 
Kellerman,  1  Disn.  548 ;  Everett  v.  3  Lewis  v.  Coulter,  supra;  Thomas 
Waymire,  30  O.  S.  308.  v.  Cline,  1  Clev.  Rep.  123. 

5  Insurance  Co.  v.  Meier,  28  Neb.  if»Coal  Co.  v.  Sanitarium  Co.,  7 
124.  .  Utah,    158,    161    (1891);    Mattison  v. 

6  Griffin  v.  Railroad  Co.,  101  N.  Y.     Smith.  19  Abb.  Pr.  290. 

348 ;  Smith   v.    Gratz,   59   How.  Pr.  u  Lawrence  v.  Cooley,  1  Clev.  Rep. 

274.     It  is  good  as  against  a  general  178. 

demurrer.     Reucher    v.    Hudson.    1  i^Bomberger  v.   Turner,    13  0.  S. 

Clev.  Rep.  218;  Bliss  on  Code  Pldg.,  263. 


§  70.]  A^•SWEK,  COUNTER-CLAIM   AND    SET-OFF.  77 

tion.^  How  then  should  the  denial  be  made?  Jud<re  Max- 
well  says  that  "  each  and  all "  or  ''  each  and  every  "  of  the  alle- 
gations referred  to  is  the  proper  mode.-  Mr.  Bliss  says  that 
most  pleaders  deny  in  terms  the  fact  affirmed,  as  "the  de- 
fendant denies  that,"  etc.,  or  "  the  defendant  says  that  it  is  not 
true  that,"  etc.^  The  latter  is  in  keeping  with  the  idea  of  a 
specific  denial.  It  contemplates  pointing  out  the  particular 
averment. 

Sec.  70.  The  general  deuial. —  A  general  denial  may  be 
made  only  when  the  whole  cause  of  action  contained  in  the 
petition  is  assailed.  It  should  be  made  only  after  a  careful 
consideration  of  the  defense  outlined.  It  is  a  dantjerous 
weapon  unless  in  careful  hands.  It  is  quite  important  that 
the  pleader  is  certain  that  his  defense  can  be  substantiated 
under  it.  Nothing  can  be  more  humiliating  than  to  be  sud- 
denly interrupted  in  tht  ])rogress  of  a  trial  by  a  ruling 
preventing  the  introduction  of  evidence  under  a  general  de- 
nial, thus  causing  an  amendment  of  the  answer  and  expense 
to  the  client.  What  may  be  shown  under  a  general  denial 
and  what  may  not,  has  been  fully  discussed  whenever  it  has 
arisen  in  the  chapters  on  the  special  subjects.  AYhile  it  is  a 
very  important  pleading,  it  seems  unnecessar}'-  to  here  fully 
review  the  authorities  merely  for  convenience.  The  reader  is 
therefore  asked  to  consult  the  index  for  what  may  be  shown 
under  it,  a  few  illustrative  cases  being  noticed  here.  A  gen- 
eral denial  controverts  every  allegation  in  the  petition.  The 
form  should  be,  "  each  and  all "  or  "  each  and  every  "  allega- 
tion in  the  petition.*  The  general  denial  introduced  by  the 
code  bears  no  relation  or  resemblance  to  the  general  issue  at 
common  law,  in  that  under  the  latter  many  more  defenses 
could  be  introduced  to  defeat  the  action  than  can  now  be 
under  the  general  denial.  Under  the  general  issue  of  non  est 
faclam  to  a  debt  on  specialty,  a  defendant  could  at  common 
law  show  that  he  never  executed  a  deed,  or  that  for  some  rea- 
son it  was  void  in  law,  or  that  it  had  been  altered.*  Under 
the  code  general  denial,  a  defendant  cannot  truthfully  deny 
that  he  executed  a  deed  when  it  has  been  altered  since  execu- 

1  Insurance  Co.  v.  Meier,  28  Neb.        3  Bliss  on  Pldg.,  sec.  325. 

124.  4  Lewis  v.  Coulter,  10  O.  S.  451. 

2  Maxwell  on  Code  Pldg.,  p.  386.  »  Stephen's  Pldg.,  p.  171. 


78  AKSWEK,  COUNTEK-CLAIM   AND    SET-OFF.  [§  71, 

tion,  and  hence  not  his  deed  because  altered.  The  alteration 
should  be  pleaded.  The  general  issue  controverted  all  mate- 
rial allegations  and  allowed  a  defendant  to  introduce  new 
matter  constituting  a  defense.^  Under  the  general  denial  a 
defendant  can  only  controvert  or  disprove  the  facts  alleged  in 
the  petition  ;  -  so  that  it  follows  that  defenses  such  as  payment, 
release,  accord  and  satisfaction,  and  man}^  other  entire  and 
partial  defenses^  which  avoid,  but  do  not  deny,  must  be  spe- 
cially pleaded  in  the  answer  as  new  matter.*  Hence  the  im- 
portance of  an  understanding  of  the  subject  is  thus  illustrated. 
A  general  denial  does  not  controvert  the  right  of  a  corpora- 
tion to  sue;'  nor  can  justification,^  or  a  former  recovery,^  be 
shown  under  it.  But  contributory  negligence,^  mitigating 
facts  in  some  instances,^  or  a  contract  different  from  that  set 
forth  in  the  petition,  may  be  shown.'**  A  demurrer  does  not 
lie  to  a  general  denial."  though  it  has  been  held  otherwise 
where  one  paragraph  contains  a  general  denial  and  the  other 
a  special  plea,  in  a  case  where  every  material  averment  could 
have  been  proven  under  a  general  denial.*- 

§  71.  Immaterial  allegations  need  no  denial. —  What  con- 
stitutes a  material  allegation  has  been  pointed  out  else  where  .^^ 
It  has  also  been  shown  that  legal  conclusions  should  not  be 
pleaded,'*  which  must  therefore  be  classed  with  immaterial 
allegations  needing  no  denial.  An  issue  cannot  be  raised 
unless  a  material  allegation  be  denied.  Legal  conclusions  are 
vicious  because  they  ordinarily  state  only  abstract  proposi- 
tions of  law,  not  facts.  Infrequently  facts  may  be  so  stated, 
and,  in  the  absence  of  objections  thereto  for  indefiniteness, 
may  when  denied  raise  an  issue,  upon  which  a  judgment  may 
be  rendered.''     Such  cases  are  so  rare  that  the  rule  that  a  de- 

^  Bliss  on  Code  Pldg.,  sec.  324.  i*  Despatch  Line  v,  Glenny,  41  O.  S. 

2  Swan's  Pldg.,  pp.  246-7.  166. 

8  See  Index.  »  Fletcher  v,  Jones,  19  N.  Y.  S.  47. 

*  McKyring  v.  Bull,  16  N.  Y.  297.  12  Toledo,  etc.  R  R  Co.  v.  Stephenson, 

5  National  Life  Ins.  Co.  v.  Robin-  131  Ind.  203 ;  30  N.  E.  Rep.  1082  (1892). 
son,  8  Neb.  452.  ^^  Ante,  sec.  52. 

6  Duval  V.  Davey,  32  O.  S.  604.  i*  Ante,  sec.  51. 

7  Allen  V.  Saunders.  6  Neb.  436.  is  Trustees  t.  Odlin,  8  O.  S.  293.     A 

8  Railroad  Co.  v.  Rutherford,  29  denial  of  a  conclusion  of  law  puts  in 
Ind.  82.  issue  every  fact  necessary  to  support 

9  Barholt  v.  Wright,  45  O.  S.  177.  the  same.     Evans  v.  Cricket,  2  W.  L. 

M.  603. 


§§  72,  73.]         ANSWER,  COUNTER-CLAIM    AND    SET-OFF.  79 

nial  of  a  conclusion  of  ki\"  does  Bot  raise  any  issue  upon  the 
facts  alleged,  may  be  considered  universal.'  Denying  that 
there  is  anything  due  or  owing  the  plaintiflF  does  not  contro- 
vert an  allegation  that  no  part  of  s.  certain  sum  has  been  paid.^ 
But  such  a  general  denial  should  no<-  be  disregarded  and  a 
judgment  rendered  thereon.'  As  against  a  demurrer,  a  gen- 
eral allegation  of  indebtedness  has  been  held  sufficient.*  There 
is  conflict  of  judicial  opinion  upon  the  question  whether  or 
not  an  averment  of  damages  is  an  issuable  traversable  fact, 
some  holding  the  affirmative,'  others  the  negative.^  The  latter 
is  the  better  view. 

See.  72.  Denial  on  belief. —  A  practice  has  been  adopted 
of  accompanying  a  denial  with  a  statement  that  it  is  made 
upon  information  and  belief,  giving  reasons  therefor  in  some 
instances.  This  has  been  approved  by  the  courtsJ  A  person 
may  not  have  personal  knowledge  of  the  truth  or  falsity  of 
allegations,  yet  may  have  information  which  satisfies  him  of 
their  falsity,  and  it  would  lead  to  injustice  to  disallow  such  a 
denial.*  This  rule,  however,  cannot  be  permitted  to  be  abused 
so  as  to  evade  the  statute  requiring  a  positive  verification.* 

Sec.  73.  The  negative  pregnant.—  A  negative  pregnant 
falls  within  an  argumentative  denial,  neither  of  which  is 
permissible,  as  the  rules  of  pleading  require  the  pleader  to 
state  his  position  in  direct  and  positive  form.  An  argumenta- 
tive denial  presents  the  reasons  for  the  denial,  or  shows  by 
argument  that  the  averments  in  the  petition  are  not  true. 

A  denial  in  the  precise  language  of  the  petition  is  a  negative 
pregnant.     It  is  not  a  denial,  but  an  admission  that  the  alleged 

1  Emory  v.  Baltz,  94  N.  Y.  408.  Traffarn,  12  Abb.  Pr.  52;  Jenkins  v. 

2Larimore  t.   Wells,  20  O.   S.  13:  Sleanka,  19  Wis.  126. 

Bank  v.  Lloyd,  18  O.  S.  SoS;  Railroad  ^  State  ex  rel.  v.  Commissioners,  11 

Co.  V.  Walker,  45  O.  S.  577-83 ;  Lake  O.  S.  183 ;  Bennett  v.  Manufacturing 

V.  Steinbach,  5  Wash.  St.  659 ;  32  .'ac.  Co.,   110    N.   Y.    150;    Raymond    v. 

Rep.  764.  Wimsette,  13  Mont.  551 ;  31  Pac.  Rep. 

3  Lewis  V.  Smith,  2  Disn.  434.  537 ;  McKenzie  v.    Insurance  Co.,  3 

4  Lewis    V.    Smith,    3    Disn.    434;  Disn.  223;  Roberts  v.  Glenn,  1  Clev. 
Flowers  v.  Slater,  2  W.  L.  M  445.  Rep.  194. 

5  Hudson  V.  Road  Co.,  45  Cal.  5.50;  »  Brotherton  v.  Downey,  21  Hun, 
Dunnick  v.  Campbell,  31  Cal.  238.  436;  Jones  v.  Petaluma,  36  Cal.  230; 

6  Gill  V.  Sells,  15  O.  S.  195 ;  Bartlett  Bennett  v.  Manufacturing  Co.,  supra, 
▼.  Braunsdorf,  57  Wis.  1 ;  Maloney  v.  9  Bliss  on  Code  Pldg.,  sec.  326. 
Dows,  15  How.  Pr.  261 ;  Raymond  v. 


so  ANSWER,  COUNTER-CLAIM    AND    SET-OFF.  [§  73. 

facts  may  have  transpired  on  some  other  day  or  under  differ- 
ent circumstances.^  A  denial  of  the  exact  value  as  alleged  is 
an  admission  of  any  less  value.-  And  so  a  denial  of  payment 
on  a  date  named  is  an  admission  that  it  was  made  upon  some 
other  day.^  And  a  denial  in  the  language  of  a  petition  that  a 
defendant  carelessly,  negligently  and  wantonly  ran  over  the 
])!  lintiff's  horse  is  not  a  denial  of  the  injury  complained  of.* 
The  inquiry  would  naturally  arise,  What  shall  be  done  with 
an  answer  containing  a  negative  pregnant?  Mr.  Bliss  has 
stated  the  Missouri  and  Iowa  rule  to  be  that  the  pleading  is 
not  treated  as  a  nullity,  but  that  it  is  only  an  informality.' 
In  both  states,  in  the  absence  of  an  objection,  it  was  sustained 
as  d  denial  raising  an  issue.^  Rules  of  law  are  evidently  flex- 
ible and  not  always  controlled  by  logical  precision,  and  are 
established  to  be  followed  or  taken  advantage  of  if  parties  so 
desire,  otherwise  not.  A  rule  descends  to  us  from  the  com- 
mon law,  is  adopted  and  becomes  part  of  our  system,  that  a 
negative  pregnant  is  not  a  denial  but  an  admission.  Yet,  as 
just  shown,  courts  hold  it  to  be  an  informality  and  not  a  nul- 
lity, which  is  not  at  all  consistent  with  the  i  ale.  The  rule 
that  parties  must  tender  an  issue  should  universally  be  ob- 
served by  both  pleader  and  court.  If  the  latter  does  not  the 
former  will  not.  An  issue  cannot  be  tendered  by  a  negative 
pregnant,  and  when  such  a  case  is  presented  and  not  discov- 
ered or  objected  to  by  counsel,  the  court  should  display  su- 
perior knowledge  by  seeing  beyond  counsel,  and  refusing  to 
hear  the  case  until  issues  are  properly  made  up.  The  plaint- 
iff may  file  a  motion  to  have  the  defect  corrected.^  Indeed  it 
seems  that  a  court  would  be  justified  in  rendering  a  judgment 
when  payment  is  attempted  to  be  controverted  in  the  form  of 
a  negative  pregnant,  as  it  is  an  a.  1  mission. 

1  Cnal  Co.  V.  Sanitarium,  7  Utah,  *  Harden  v.  Railroad  Co.,  4  Neb. 
158  (1892);  Robbins  v.  Lincoln,  12  521;  Bliss' Code  Pldg..  sec.  333 ;  Coal 
Wis.  9;  Miller  v.  Brumbaugh,  7  Kan.     Co.  v.  Sanitarium  Co.,  supra. 

343;  Seward  v.    Miller,  6   How.  Pr.  5  Bliss  on  Code  Pldg.,  sec.  333;  Max- 

312.  well  on  Code  Pldg.,  p,  16. 

2  Caldwell  v.  Same,  45  O.  S.  512-20 ;  6  Doolittle  v.  Greene,  32  Iowa,  123 ; 
Scovill  V.  Barney,  4  Oreg.  288.  Bank  v.  Hogan,  47  Mo.  472. 

3Argard  v.   Parker,   81    Wis.   581        'WdU  v.  Water  Co..  18  N.  Y.  119. 
(1892) ;  Schaetzel  v.  Insurance  Co.,  23 
Wis.  412. 


§§  74,  75.]         ANSWER,  COUNTER-CLAIM   AND    SET-OFF.  81 

Sec.  74.  Sham  denial.— The  purpose  of  verification  of 
pleadings  is  to  insure  good  faith  and  to  prevent  false  state- 
ments therein,  and  thereby  guard  against  what  are  termed 
sham  pleadings.  Sham  pleadings  were  not  allowed  at  com- 
mon law,  and  so  under  the  code.  A  false  denial  may,  in  com- 
mon parlance,  be  termed  a  sham  denial  and  should  be  stricken 
from  the  files  upon  motion.  It  has  even  been  held  that  a 
court  may  hear  evidence  to  determine  the  question  of  lona 
fides  or  falsity.^  Substantially  the  same  practict  was  pursued 
at  common  law.  Parties  were  permitted  to  file  a  motion  set- 
ting up  the  falsity  supported  by  affidavits.-  But  the  courts  of 
Xevv  York  refuse  to  enter  into  the  question  when  it  needs 
argument  to  demonstrate  the  fact  that  it  is  sham,^  and  will 
not  disturb  a  denial  of  a  material  allegation.*  If  shown  to  be 
false  and  sham  a::  to  part  of  the  averments  it  may  be  stricken 
from  the  files,  though  the  answer  contain  other  allegations 
by  way  of  defense.'^ 

Sec.  75.  New  matter.— The  answer  may  contain:  A  state- 
ment of  any  new  matter  constituting  a  defense,  counter-claim 
or  set-off  in  ordinary  and  concise  language.'^  The  same  rules 
as  to  statement  of  facts,  conditions,  conclusions  of  law.  as 
shown  in  the  chapter  on  the  petition,  are  applicable  to  the  an- 
swer."' In  view  of  the  fact,  therefore,  that  these  general  rules 
are  found  at  the  place  indicated,  and  that  the  answers  in  the 
particular  actions  are  discussed  in  subsequent  chapters,  there 
is  little  left  relating  solely  to  the  answer  to  be  noticed  here. 
A  demurrer  should  not  be  sustained  to  an  answer  which  con- 
tains facts  sufficient  to  defeat  the  plaintiff's  right  of  recovery, 
mereiv  because  the  material  facts  are  unskilfully 'arranged  or 
stated.^  Allegations  of  new  matter  without  merit  should  be 
stricken  out  as  irrelevant,^  and  purely  technical  defenses 
should  be  scrutinized.^'^    It  is  not  essential  that  the  new  mat- 

1  Wertbeimer  v.  Morse,  23  W.  L.  B.  ^Zivi  v.  Einstein,  21   N.  Y.  S.  676. 

4-)5.  See  post,  sec.  122. 

-  Tiiomas  v.  Vandeimooleu,  2  Barn.  5  Sherman  v.  Boehm,  13  Daly,  -12. 

&  Aid.  197;  Shadweli  v.  Bertliond,  .5  6  0.  Code,  sec.  5070. 

Barn.  &  Aid.  750 ;   Young  v.  Gad-  '  See  ch.  5. 

derer,  1  Bing.  380.  8 Sterling  Wrench  Co.  v.  Anistutz, 

■^  Metzer  v.  Met  EI.  R.  Co.,  21  N.  50  O.  S.  481 

V.  S.  676.  9Ridenour  v.  Mayo,  29  O.  S.  138. 


6 


i"Fox  V.  Althori),40O.  S.  322. 


S2  ANSWER,  COUNTEK-CLAIM  AND  SET-OFF.         [§  76. 

ter  alleged  be  a  defense  to  the  whole  or  to  a  single  para- 
graph of  a  petition,  but  is  good  to  the  extent  alleged.^  But 
an  answer  which  is  pleaded  in  bar  to  the  whole  of  a  cause  of 
action,  which  is  in  fact  only  a  partial  defense,  is  subject  to  a  de- 
murrer.2  And  so  with  an  answer  stating  only  such  facts  as  con- 
stitute a  bar  neither  to  the  whole  nor  to  any  part  of  the  plaint- 
iff's action.^  If  the  defense  merely  disproves  the  plaintiff's  state- 
ment, then  it  is  not  new  matter,  and  is  admissible  under  the 
general  denial;  if,  on  the  contrary,  the  statement  of  plaintiff 
is  not  denied,  the  facts  constituting  the  defense  is  new  matter, 
as  confession  and  avoidance,  and  must  be  set  forth.  Facts  which 
show  payment,^  want  of  consideration,^  or  a  usurious  contract,® 
or  a  bar  by  statute  of  limitations,'  release,  accord  and  satisfac- 
tion, are  illustrative  of  what  constitutes  new  matter.  An  an- 
swer setting  up  a  different  contract  from  that  sued  on  is 
regarded  only  as  a  denial.^  A  defendant  ma}''  be  entitled  to 
admissions  in  a  petition  to  sustain  his  answer  against  a  gen- 
eral demurrer,^  and  admissions  in  a  former  answer  may  bo 
given  in  evidence.^''  An  answer  to  a  petition  by  a  widow  for 
dower  merely  denying  the  right  thereto  is  not  admissible 
under  the  code.^^  A  repetition  of  a  general  or  special  denial 
may  be  stricken  out  on  motion. ^- 

Sec.  TO.  Joint  answer. —  xVn  answer  by  one  of  several  de- 
fendants sued  jointly,  setting  up  a  defense  common  to  all,  will 
inure  to  the  benefit  of  all.'* 

1  Swan's  P.  &  P.,  p.  256.  man,  33  Neb.  409 ;  Jlorford  v.  Davis, 

2  Ponder  v.  Tate,  76  Ind.  1 ;   Fal-    28  N.  Y.  481. 

mouth,  etc.  Cq.  v.  Sliawhan,  107  Ind.  '  Tovvsley  v.  Moore,  30  O.  S.  184. 

47;  Shortle  v.  Railroad  Co.,  131  Ind.  See  sec.  1147,  ^jo.s^ 

338:  30  N.  E.  Rep.  1084  (1892).  spiedeldey  v.  Reis,  12  W.  L.  B.  77. 

3  Gill  V.  Sells,  17  O.  S.  195.  But  see  SGebhart  v.  Sorrels,  9  O.  S.  461 ; 
Peebles  v.  Isaminger,  18  O.  S.  490.  Erwin  v.  Shaffer,  9  O.  S.  43 ;  Insur- 

4Quin  V.  Lloyd,  41  N.  Y.  349;  Me-  ance  Co.  v.  McGookey,  33  O.  S.  555. 

Kyring  v.  Bull,  16  N.  Y.  297.  lopeckham  Iron  Co.  v.  Harper,  41 

5  Chamberlain  v.  Railroad  Co.,  15  O.  S.  100. 

O.   S.   225;   Louderman   v.   Judy,   2  n  Finch  v.  Finch,  10  O.  S.  501. 

O.  C.  C.  351.     Illegality  of  consider-  i2Campen  v.  Murray,  3  O.  C.  C.  93, 

ation  is  the  same  as  want  of  consid-  13  Miller  v.  Longacre,  26  O.  S.  291 ; 

eration.      Matthews   v.   Leaman,   24  Slevin   v.   Reynolds,    1    Handy,    37; 

O.  S.  615.  Sprague  v.  Childs,  16  O.  S.  107. 

<>  Anglo  A.  L.  ]\I.  etc.  Co.  v.  Broh- 


§§  77,   78.]        ANSWER,  COUNTER-CLAIM    AND    SET-OFF.  S3 

See.  77.  Answer  of  guardian  and  attorney. —  A  guardian 
of  an  infant,  or  of  a  person  of  unsound  mind,  or  an  attorney 
for  a  person  in  prison,  shall  deny  in  the  answer  all  material 
allegations  of  the  petition  prejudicial  to  such  defendant,^ 
The  guardian  must  bring  the  rights  of  his  ward  properly  be- 
fore the  court  bv  a  denial  or  otherwise.-  An  answer  allesinsr 
ignorance  of  the  matters  in  the  petition,  praying  to  have  the 
rights  of  the  infant  protected,  is  in  effect  a  general  denial.^ 
And  even  though  a  guardian  does  not  expressly  deny  the 
allegations  made  by  plaintiff,  a  judgment  will  not  be  dis- 
turbed if  it  appears  from  the  record  that  the  court  treated  it 
as  a  denial.* 

Sec.  78.  Several  defenses. —  A  defendant  is  permitted  under 
the  code  to  set  up  as  many  grounds  of  defense,  counter-claim 
and  set-off,  whether  legal  or  equitable,  as  he  may  have,  so 
long  as  they  are  consistent  with  each  other ;  those  not  set  up 
are  waived.'  There  is  no  provision  requiring  the  defenses  to  be 
technically  consistent  with  each  other,  except  that  they  must 
be  verified,  and  two  inconsistent  defenses  cannot  be  verified.* 
In  Xew  York  a  defendant  may  set  up  as  many  defenses  as  he 
may  have,  whether  consistent  or  not.^ 

It  is  not  consistent  with  the  spirit  and  intention  of  the  code 
that  a  party  having  two  good  defenses,  and  not  knowing  which 
of  the  two  in  fact  or  in  law  is  his  true  one,  shall,  at  his  peril, 
be  compelled  to  elect  in  advance  on  which  he  will  rely,  to  the 
exclusion  of  the  other.  "When  from  the  nature  of  the  case  it 
is  uncertain  which  of  the  two  grounds  of  defense  is  the  proper 
one,  it  is  competent  to  set  them  both  up  if  the  answer  can 
be  sworn  to  without  falsifying  the  one  or  the  other.®  In  a 
suit  upon  a  note  the  defendant  may  deny  its  execution,  or,  if 

1  O.  Code,  sec.  5078.  defense  is  not  necessarily  waived  by 

-Long  V.  Mulford,  17  O.  S.  484.  setting  up  other  defenses  inconsistent 

•'  Wood  v.  Butler,  23  O.  S.  520.  therewith.    Insurance  Co.  v.  Frick,  29 

*  Randall  v.  Turner,  17  O.  S.  262.  O.  S.  466. 

5  0.  Code,  sec.  5071 ;  Bank  v.  CIos-  6  Bank  v.  Closson,  29  O.  S.  78. 

son.  29  O.  S.  81 :  Witte  v.  Lockwood,  '  Society  Italiana  v.  Sulzer,  138  N. 

39  O.  S.  141,  and  cases  cited ;  McKins-  Y.  468 ;  Bruce  v.  Burr,  67  N.  Y.  287; 

ter  V.  Hitchcock,  19  Neb.  105.    See  Goodwin   v.    Wertheimer,  99  N.  Y. 

ante,  sec.  21 ;  Pavey  v.  Pavey.  30  O.  S.  149. 

600 :  Richardson  v.  Bates,  8  O.  S.  264 ;  8  o.  Code,  sec.  5071 ;  Bank  v.  Clos- 

Judy  V.  Louderman,  48  O.  S.  572.     A  son,  29  O.  S.  81. 


84  ^,      ANSWER,  COUNTER-CLAIM   AND    SET-OFF.  [§  79. 

the  signature  to  the  note  is  genuine,  that  it  was  fraudulently 
obtained;^  or  the  defendant  may  deny  its  execution  and  also 
claim  that  there  was  no  consideration  therefor  ;2  or  he  may 
aver  want  of  consideration  in  that  it  was  made  upon  false 
representations,  and  also  ask  recoupment  of  damages.'^  In  an 
action  of  ejectment  a  plea  of  not  guilty  and  a  disclaimer  are 
inconsistent,  the  former  being  an  admission  of  possession  put- 
ting the  question  of  title  in  issue,  while  the  latter  admits  title 
but  denies  possession.*  Each  defense  must  be  complete  in 
itself,^  although  to  avoid  repetition  allegations  in  one  defense 
or  count  may  be  incorporated  into  another  by  proper  refer- 
ence.^ Two  or  more  defenses  must  be  separately  stated  and 
numbered  as  is  required  in  tv:o  or  more  causes  of  action,^ 
though  it  will  be  a  sufficient  compliance  with  the  rule  if  sep- 
arated into  paragraphs  and  not  numbered.' 

Sec.  79.  Answer  and  cross-petition. —  When  a  defendant 
demands  affirmative  relief,  the  pleading  filed  by  him  is  termed 
an  answer  and  cross-petition.^  A  defendant  may  admit  the 
claim  set  up  in  the  petition,  and  join  in  the  relief  there  sought 
by  wa}^  of  cross-petition.  Only  those  allegations  controverted 
should  be  denied.  Hence,  to  enable  a  defendant  to  claim  re- 
lief by  way  of  cross-petition,  it  is  not  essential  that  he  deny 
the  allegations  of  the  petition.'"  An  answer  will  be  treated 
as  a  cross-petition,  and  the  proper  relief  granted,  though  not 
so  denominated,  if  the  necessary  facts  to  warrant  the  same  are 
set  forth."  Only  such  relief  can  be  prayed  for  as  relates  to 
the  matters  contained  in  the  petition; '- so  that  a  defendant 
cannot  bring  in  a  controversy  with  a  third  person  not  con- 

1  Bank  v.  Closson,  29  O.  S.  78.  5  Reid  v.  Huston.  55  Ind.  173 ;  Bank 

zPavey  v.  Pavey,  30  O.  S.  600.    See  v.  Green,  33  la.  140. 

Nelson  V.  Brod hack,  44  Mo.  596 :  Bell  ^See  sec.  20.    ante;  Hammond  v. 

V.   Brown,   22  Cal.  671 ;    Hopper  v.  Earle,  58  How.  Pr.  426. 

Hopper,    11   Paige,   46;    Springer  v.  'See  ante,  sec.  20;  O.  Code,  sec. 

Dwyer,  50  N.  Y.  19 ;  Buhler  v.  Went-  5071. 

worth,  17  Barb.  649 ;  Mott  v.  Burnett,  niundy  v.  Wight.  Ce  Kan.  173. 

2  K  D,  Smith.  50;  Weston  v.  Luni-  ^O.  Code,  sec.  5059. 

ley,  33  Ind.  486 ;  Derby  v.  Gallup,  5  l"  Bradford  v.  Andrews,  20  O.  S.  208. 

Minn.  119.     Contra,  Barnes  v.  Scott,  n  Klonne  v.  Bradstreet,  7  O.  S.  322. 

11  S.  Rep.  48  (Fla.,  1892),  ^W.   Code,    sec.    5071;    Brown  v. 

3  Springer  v.  Dwyer,  50  N.  Y.  19.  Kuhn,  40  O.  S.  485. 

*Torrey  v,  Forbes,  94  Ala.  135;  10 
S.  Rep.  320  (1891). 


§  80.]  ANSWER,  COUNTER-CLAIM    AND    SET-OFF.  85 

nected  with  the  case,'  bvit  may  against  other  defendants  in 
the  same  petition.-  The  real  party  in  interest  may  intervene 
b}''  way  of  cross-petition  as  against  an  apjiarent  party  or  owner, 
and  obtain  the  necessary  relief.^  The  plaintiff  in  the  case  be- 
comes a  defendant  to  the  cross-petition,  and  is  entitled  to  the 
same  period  in  which  to  reply  as  is  allowed  a  defendant,  to  wit, 
the  third  Saturday  after  the  cross-petition  is  filed.*  It  is  not 
necessary  to  issue  a  summons  for  a  person  already  in  court 
upon  the  filing  of  a  cross-petition.'^  But  the  rule  is  otherwise 
where  a  personal  judgment  is  sought  by  way  of  cross-petition 
when  the  defendant  filing  the  same  is  in  default  for  answer. 
Summons  is  necessary  in  such  cases.^ 

Sec.  80.  Counter-claim  —  Defined  —  Nature  of. —  "We  have 
seen  that  the  new  matter  which  a  defendant  may  set  up  in  his 
answer  may  consist  of  matter  constituting  a  counter-claim ;  ^ 
and  that  a  defendant  may  set  up  as  many  defenses  as  he  may 
have,  whether  made  up  of  new  matter,  counter-claim  or  set- 
off,^ and  claim  such  relief  touching  the  matters  in  question  in 
the  petition  against  the  plaintiff'.'*  He  may  state  facts  which 
may  be  both  a  defense  and  a  counter-claim,  in  which  case  the 
two  should  be  stated  separately  and  numbered.'**  A  counter- 
claim which  a  defendant  is  permitted  under  the  code  to  set  up 
by  way  of  defense  must  be  a  complete,  independent  cause  of 
action,  legal  or  equitable,  other  than  set-off,  existing  in  favor 
of  a  defendant  against  a  plaintiff,  between  whom  a  several 
judgment  might  be  bad  in  the  action,"  or  one  of  which  the 
court  in  which  the  action  is  pending  would  have  jurisdiction 
in  a  separate  case.'-  Before  final  submission  of  the  cause  the 
court  may  upon  motion  allow  the  counter-claim  to  be  with- 
drawn, and  the  same  may  become  the  subject  of  another 
action.'^     If  an  independent  action  has  already  been  instituted 

1  Bartlett  v.  Patterson,  10  W.  L.  B.  « Thatcher  v,  Dickinson,  3  O.  C.  C. 
367.  144. 

2  O.  Code,  sec.  5071.  "  Ante,  sec.  75 ;  O.  Code,  sec.  5071. 

3  0sborn  v.  McClelland,  43  O.  S.  ^Ante,  sec.  78;  O.  Code,  sec.  5071. 
284.  9  0.  Code,  sec.  5071. 

*  Kummel  v.  Pratt,  40  O.  S.  344.  lo  Lancaster  &c.  Mfg.  Co.  v.  Colgate, 

5  Brown  v.  Kuhn,  40  O.  S.  485.   Not     12  O.  S.  344. 
necessary    in    divorce     proceedings.       li  O.  Code,  sec.  5073. 
Young  V.  Young,  9  W.  L.  B.  24.  l2Cregin  v.  Lovell.  88  N.  Y.  258. 

18  O.  Code.  sec.  5089. 


,S6  ANSWER,  COUNTER-CLAIM    AND    SET-OFF.         [§§  81,  82. 

thereon,  the  court  may  refuse  to  consider  it.^  It  must  arise 
out  of  the  contract  or  transaction  set  forth  in  the  petition,  or  be 
connected  with  the  subject  of  the  action.-  It  must  have  some 
direct  connection  with  the  transaction  sued  on.^  The  words 
"  subject  of  the  action  "  are  construed  to  mean  the  questions 
in  dispute  between  plaintiff  and  defendant,  or  the  facts  con- 
stituting plaintiff's  cause  of  action.*  It  is  synonymous  with 
the  term  "  cause  of  action."  ' 

Sec.  81.  Counter-claim  —  How  pleaded.— An  answer  set 
tino-  up  a  counter-claim  must  contain  facts  which  constitute  a 
cause  of  action  in  itself,  in  such  a  manner  as  to  entitle  the  de- 
fendant to  a  judgment  or  decree  in  a  separate  action,®  and 
with  the  same  distinctness  and  certainty  as  if  in  a  petition.^ 
The  usual  way  is  to  designate  it  as  a  counter-claim  and  ask 
for  affirmative  relief.^  The  same  rules  of  pleading  are  ap- 
plicable as  in  stating  any  cause  of  action.  A  defect  in  a 
counter-claim  must  be  reached  by  a  demurrer  or  motion  to 
make  definite  and  certain.^  If  it  appears  that  other  new  par- 
ties are  necessary  to  a  final  decision  upon  a  counter-claim,  they 
may  be  made  by  permission  of  court,  or  the  counter-claim 
may  be  dismissed  and  made  the  subject  of  a  separate  action.'" 

Sec.  82.  Couuter-claim  —When  may  be  set  up  —  Judicial 
expositions.—  As  against  a  note  for  goods  sold,  a  defendant 
may  set  up,  by  way  of  counter-claim,  a  breach  of  contract  of 
sale  or  fraudulent  representations,'^  or  failure  of  considera- 
tion.^^ If  delivery  of  goods  and  payment  appear  to  have 
been  concurrent  conditions,  the  answer  will  be  ineffectual  as 
showing  a  counter-claim  unless  it  avers  an  offer  or  readiness 
to  pay.'^  An  overpayment  of  a  note  may  be  set  up  as  a 
counter-claim  against  an  action  thereon.'*    A  creditor  of  a 

1  Becroft  v.  Dossman,  2  W.  L.  B.  '  Dale  v.  Hunneman,  12  Neb.  221-5. 
1 10.  8  Bliss"  Code  Pldg.  sec.  367  :  Bates  v. 

-  O.  Code,  sec.  5072.  Rosekrans.  37  N.  Y.  409. 

3  Brothers  v.  Mason,  2  C.  S.  C.  R.        » Fittretch  v.  ]\IcKay.  47  N.  Y.  426. 

66 ;    Roots    v.    Nye,   2   Handy,    22V»  lo  O.  Code,  sec.  5074 

See  Evans  v.  Hall,  1  Handy,  434-7;  "Timmons  v.  Dunn,  4  O.  S.  681  ; 

Marthens  v.  Dudley.  1  W.  L.  B.  302.  Upton  v.  Julian.  7  O.  S.  95. 

4Chamboret  v.  Same.  41  How.  Pr        i-' Holzwoith  v.  Koch,  26  O.  S.  33. 
125.     See  Bliss'  Code  Pldg.,  sec.  373.  *       i'' Chambers  v.  Frazier  29  O.  S.  362. 

5  Borst  V.  Corey,  15  N.  Y.  509.  •*  West  v.  Meddock,  16  O.  S.  418. 

6  Hill  V.  Butler,  6  O.  S.  207 ;  Cregin 
V.  Lovell,  88  N.  Y  258. 


§  83.]  ANSWER,  COL'NTER-CLAIM    AND    SET-OFF.  87 

mortgagor  of  personalty  may  be  made  a  party  defendant  to 
an  action  by  the  mortgagee  and  enforce  his  right  to  relief  by 
way  of  counter-claim.^  As  against  a  foreclosure  of  a  mort- 
gage the  mortgagor  may  set  up  a  claim  for  damages  arising 
from  fraud  of  the  mortgagee  in  selling  the  premises  to  the 
mortgagor ;  -  or  in  case  of  a  sale  of  business  and  good-will  as 
against  a  mortgage  securing  the  purchase-money,  he  may  set 
up  a  breach  of  contract;^  or  the  mortgagor  may  set  up  a 
counter-claim  for  damages  for  misrepresentations  as  to  the 
premises,*  or  for  an  unpaid  assessment  due  at  the  date  of 
sale.^  A  tenant  may  claim  damages  for  a  breach  of  a  lease 
in  an  action  by  the  lessor  for  rent,^  but  not  wrongful  acts  of 
landlord,  as  trespass  or  negligence,^  or  that  the  premises  were 
rendered  uninhabitable  by  reason  of  noise.^  Damages  for 
failure  on  the  part  of  the  landlord  to  build  a  fence  according 
to  contract,®  or  breach  of  covenant  to  make  repairs,'"  may  be 
set  up  as  a  counter-claim  against  rent.  A  vendee  may  set  up 
as  a  counter-claim  against  the  vendor  of  realty  a  claim  for 
damages  sustained  by  reason  of  false  representations,"  or  for 
any  breach  of  covenants  of  warranty,^'^  though  a  defect  in  title 
is  not  available  as  a  counter-claim  as  against  purchase-money, 
unless  there  has  been  an  eviction.^^  An  incumbrance  may  be 
set  up  even  against  a  transferee  of  a  note  without  indorse- 
ment.'* As  against  an  action  for  the  purchase  price  of  goods 
sold,  a  defendant  may  claim  damages  arising  from  fraud  or 
breach  of  warranty,''^  as  for  a  defect  of  quality  or  quantity.'^ 
Sec.  83.  Trial  on  eoiiiiter-claim. —  A  defendant  who  has 
properly  set  up  a  counter-claim  has  the  right  to  have  the  same 
tried,  even  though  the  plaintiff  may  have  dismissed  his  action 

1  Morgan  v.  Spangler,  20  O.  S.  38.  lo  Cook  v.  Soule,  45  How.  Pr.  340 ; 

2  Allen  V.  Shackelton,  15  O.  S.  145.  Block  v.  Ebuer,  54  Ind.  544 

3  Buickhardt  v.  Burckhardt.  86  O.       ii  Mulvey  v.  King,  39  O.  S.  491. 
S.  261.  '"  Guest  V.  Kenner,  2  Handy,  86. 

i  Pierce  v.  Tierch,  40  O.  S.  168.  '^  Picket  v.  Picket,  6  O.  S.  525.     See 

■^  Craig  V.  Heis,  30  O.  S.  550.  chapter  on  Deeds,  sec.  477. 

«Cook  V.  Soule,  56  N.  Y.  420 ;  Black  i^  Kyle  v.  Thompson,  11  O.  S.  616. 
V.   Ebner,   54    Ind.    544;     Myers    v.       15  Bounce  v.  Dow,  57  N.  Y.  16 ;  Day- 

liurns,  35  N.  Y.  269.  ton  v.  Hoogluml,  39  O.  S.  671 ;  Upton 

"  Edgerton  v.  Page,  20  N.  Y.  281.  v.  Julian.  7  O.  S.  95 ;  Moore  v.  Wood- 

'  Boreal  v.  Lawton,  90  N.  Y.  293.  side,  26  O.  S.  537. 

^  Hay  V.  Short,  49  Mo.  lo9.  i"  Moore  v.  Woodside,  26  O.  S.  537. 


88  ANSWER,  COUNTEK-CLAIM   AND   8BT-0FF.  [§  84. 

or  failed  to  appear.  This  right  only  exists,  however,  where 
the  allegations  in  the  answer  are  such  as  entitle  the  defendant 
to  affirmative  relief.^  But  a  plaintiff  in  suc!i  case  cannot  dis- 
miss the  action  so  as  to  defeat  the  right  of  the  defendant  to 
have  his  counter-claim  so  tried.-  And  where  the  counter-claim, 
being  within  the  original  jurisdiction  of  the  court,  is  tried 
without  objection,  the  plaintiff  is  considered  to  have  waived 
his  right  to  raise  the  question  whether  the  cross-demand  is  a 
proper  subject  of  counter-claim.^ 

Sec.  84.  Set-off. —  Falling  under  the  head  of  new  matter 
which  a  defendant  is  permitted  to  set  up  as  a  defense  is  set- 
off, which  may  be  defined  as  a  cross-demand  not  arising  out 
of  the  transaction  set  forth  in  the  petition,  nor  connected 
with  the  subject  of  the  action.  It  must  be  a  cause  of  action 
arising  upon  contract,  and  can  be  pleaded  only  in  an  action 
founded  on  contract.''  The  right  of  set-off  is  purely  statutory,^ 
and  under  some  codos  it  is  embraced  in  counter-claims."  It 
exists  only  when  there  is  a  cross-demand  between  the  same 
parties  at  the  same  time,  and  on  which  an  action  might  be 
maintained  at  the  same  time  by  either  party.''  It  may  be 
claimed  against  an  equitable  owner  of  the  demand  in  suit,* 
and  is  governed  by  the  law  of  the  place  where  the  action  is 
brought.^  The  intention  of  the  code  was  to  preserve  the 
right  of  set-off  as  against  an  assignment  of  a  demand,^"  so  that 
a  party  may  recover  a  set-off  by  virtue  of  an  assignment.^^ 
But  this  is  not  true  of  an  assignment  of  a  non-negotiable  con- 
tract before  'due.^-  It  may  also  be  asserted  as  against  a  re- 
ceiver of  an  insolvent  corporation.'^  jf  ^  new  party  be  nec- 
essary to  a  final  decision  upon  a  set-off,  such  new  party  may 
be  brought  in.'* 

IBank  v.  Weyand,  30  O.  S.  126.  ages  against  assignee  must  exist  at 

2  Wiswell  V.  Church,  14  O.  S.  31.         the  time.     Heister  v.  Insurance  Co.. 

3  Fitzgerald  v.  Cross,  30  O.  S.  444.     6  Am.  L.  Rec.  238. 

See  Ashley  v.  Marshall,  29  N.  Y.  494;  miller  v.  Florer,  15  O.  S.  148. 

Vann  v.  Rouse,  94  N.  Y.  401.  ^  Bank  v.  Hemingray,  31  O.  S.  W>^ 

*  O.  Code,  sec.  5075;  Swan's  Pldg.,  lORoss  v.  Johnson,  1  Handy,  388. 

p.  263:  Ernst  v.  Kunkle,  5  O.  S.  521.  n  O.  Code,  sec.  4993. 

5 Ross  V.  Johnson,  1  Handy,  388.  '-'Fuller  v.  Steiglitz,  27  O.  S.  355. 

6  Boone's  Pldg.,  sec.  85.  "  Hade  v.  McVay,  31  O.  S.  231. 

7  Whims  V.  Grove,  1  O.  C.  C.  98;  ^*0.  Code,  sec.  5076. 
Ross  V.  Johnson,  1  Handy,  388.    Dam 


§  85.]  ANSWEK,  COUNTER-CLAIM    AND   SET-OFF.  89 

Sec.  85.  What  subject  of  set-oif*.— In  an  answer  founded 
on  contract  a  defendant  may  claim  as  set-off  any  cause  of 
action  he  may  have  against  the  plaintiff,  arising  upon  contract, 
whether  it  be  a  liquidated  demand  or  for  unliquidated  dam- 
ages.^ Ordinarily,  separate  and  joint  claims  cannot  be  set  off 
against  each  other,  but  a  natural  equity  in  fav^or  of  such  set- 
off will  be  protected.-  And  in  an  action  on  a  separate  note  a 
defendant  may  set  off  an  overdue  joint  note  made  by  plaintiff 
and  another  where  both  are  insolvent.^  A  set-off  may  be 
pleaded  against  an  administrator  if  against  the  estate,'*  but 
not  by  one  who  has  property  belonging  to  the  estate  when 
sued  therefor.^  A  defendant  may  claim  as  a  set-off  an  indi- 
vidual claim  against  a  surviving  partner  to  whom  an  account 
has  been  assigned  by  his  partner;"  and  so  with  a  debt  due 
from  a  firm  as  against  a  suit  by  a  surviving  partner  on  a  part- 
nership contract.'  But  where  only  one  member  of  a  firm  is 
served  in  a  suit  against  a  firm,  a  claim  held  by  him  individ- 
ually cannot  be  set  off  against  the  plaintiff.^  A  stockholder 
cannot  offset  a  sum  of  money  by  him  paid  on  a  judgment 
rendered  against  the  corporation  against  a  note  given  by  him 
for  stock.^  An  indorser  of  a  note  cannot  set  off  his  liabilit}' 
against  the  maker,"*  nor  is  a  note  assigned  after  maturity  the 
subject  of  set-off  against  the  assignor.^^  In  an  action  on  a 
joint  debt  against  principal  and  surety  a  demand  due  from 
plaintiff  to  the  principal  ma}'  be  set  off.^-     A  claim  on  which 

iNeedham  v.  Piatt,  40  O.  S.  186;  -'Bank  v.  Heniingray,  1  C.  S.  C.  R- 

R.  S.,  sec.  5075;  Stevens  v.  Able,  15  435;  34  O.  S.  381 :  Baker  v.  Kinsey, 

Kan.  584 ;  Fuller  v.  Steiglitz,  27  O.  S.  41  O.  S.  403 :    Stanbery  v.  Smytlie. 

355;  Doppler  v.  Cox,   10  Am.  Law  13  0.  S.  495;  Miller  v.  Florer,  19  O.  S. 

Rec.  306.     Cf.  McCulloch  v.  Lewis,  1  356. 

Disn.  564:  Evens  v.  Hall,  1   Handy,  3  Baker  v.  Kinslej%  41  O.  S.  403. 

434;  Rubber  Co.  v.   Bradford,  y  W.  4  Granger  v.  Granger,  6  O.  35.    See 

L.  B.  35.     A  defendant  cannot  under  O.  Code,  sec.  5077. 

a  plea  of  set-off  for  money  received  5  McDonald  v.  Black,  20  O.  185. 

by  plaintiff  to  the  use  of  defendant  ^  Beesley  v.  Crawford,  19  O.  126. 

recover  damages  for  breach    of  an  'Beach  v.  Hay  ward,  10  O.  455. 

express  contract.     Smith  v.  Machine  » Williams  v.  Pultze,  2  W.  L.  B. 

Co.,   26  O.   S.  562.      See  Corbin   v.  253. 

Bouve,  1   C.  S.  C.  R.  259.     As  to  a  s)  Bates  v.  Lewis,  3  O.  S.  459. 

judgment,   see    Freeman    on    Judg-  "'  Follett  v.  Buyer.  4  O.  S.  586. 

ments,  sec  446:  O'Brien  v.  Young,  n  Knisely  v.  Evans,  34  O.  S.  158. 

95  N.  Y.  428 ;  May  v.  Culyer,  55  N.  i-'  Wagner  v.  Stocking,  22  O.  S.  297. 
\V.  Rep.  744 


90  ANSWER,  COUNTER-CLAIM   AND    SET-OFF.         [§§  86,  87. 

the  original  action  was  founded  cannot  be  set  off  in  an  action 
on  a  restitution  bond,'  nor  can  a  mayor  set  off  unpaid  costs 
appearing  on  his  docket  against  an  action  for  fines  by  him 
collected.-  A  claim  to  be  allowed  as  a  set-off  must  be  one 
\vhich  belonged  to  the  defendant  at  the  time  of  the  commence 
ment  of  the  action  in  which  it  is  souo^ht  to  be  established. 
Claims  purchased  to  be  set  up  are  not  available.^  And  the 
statute  of  limitations  begins  to  run  against  a  set-off  from  the 
date  of  the  commencement  of  the  action  in  which  it  is  pleaded.* 

Sec.  86.  Cross-demands  deemed  compensated. —  When 
<3ross-demands  have  existed  between  two  persons  under  such 
circumstances  that,  if  one  had  brought  suit  against  the  other, 
a  counter-claim  or  set  off  could  have  been  set  up,  neither  can 
be  deprived  of  the  benefit  thereof  by  assignment  by  the  other, 
or  by  his  death,  but  the  two  demands  must  be  deemed  com- 
pensated, so  far  as  they  equal  each  other.' 

Sec.  87.  Judgment  upon  default. —  When  all  or  part  of 
one  or  more  of  the  causes  of  action  are  not  put  in  issue  by 
answer,  judgment  may  be  taken,  as  upon  default,  for  so  much 
as  is  not  put  in  issue.^  A  default  judgment  cannot  be  taken 
against  a  lunatic  or  infant,"  or  in  an  action  not  founded  upon 
contract,^  though  it  is  not  error  to  take  default  judgment 
upon  an  account."  Where  judgment  by  default  has  been  taken 
for  a  sum  less  than  due,  there  can  be  no  recovery  for  the  re- 
mainder.^" A  default  judgment  may  be  set  aside  to  allow  a 
meritorious  defense  to  be  made,"  though  not  after  the  term  nt 
which  it  was  taken.'- 

1  Bickett  V.  Garner,  31  O.  S.  28.  "  Sturgess  v.   Longworth,   1  O.  S. 

2Deatrick  v.  City,  1  O.  C.  C.  340.  544;  Long  v.  Mulford,  17  O.  S.  484. 

3  Strauss  v.  Insurance  Co.,  5  O.  S.  » Pollock  v.  Pollock,  2  O.  C.  C.  14:5. 

59.  "  Dallas  v.  Ferneau,  25  O.  S.  635. 

4McEwing  V.  James,  36  O.  S.  152.  iC'Ewing  t.  McNairy,  20  O.  S.  315. 

5  O.  Code,  sec.  5077.  l'  Messick  v.  Roxbury,  1  Hand}',  Ifto. 

6  O.  Code,  sec.  5320.  '2  Johnson  v.  Taylor,  2  Handy,  ITS. 


CHAPTER  7. 

THE  REPLY. 


Sec.  88.  The  reply  —  Contents. 

89.  A  reply  must  be  made  when. 

90.  When    reply  need    not  be 

made. 


Sec.  91.  New  matter  in  reply  —  De- 
parture. 
93.  Remedy  for  departure. 


Sec.  88.  Tlie  reply  —  Contents. —  "When  the  answer  con- 
tains new  matter  the  plaintiff  may  either  file  a  demurrer  or  a 
reply  thereto.  The  reply  may  deny  generally  or  specifically 
each  allegation  of  new  matter  contained  in  the  answer;  and 
it  may  also  allege  any  new  matter  not  inconsistent  with  the 
petition  which  constitutes  an  answer  to  the  new  matter  con- 
tained in  the  answer.^  A  reply  may  be  permitted  to  be  filed 
after  verdict  upon  the  theory  that  the  allegations  of  the 
answer  are  denied ;  ^  but  defendant  waives  the  filing  of  a 
reply  by  proceeding  to  trial  without  objection.'  An  aver- 
ment in  a  reply  that  the  pleader  cannot  admit  or  deny  the 
allegations  of  the  answer,  and  demands  proof  of  the  same,  is 
not  such  a  denial  as  will  require  the  defendant  to  prove  his 
averments.*  And  failure  to  deny  matter  set  u])  in  an  answer 
which  is  mere  surplusage  is  not  fatal,  and  does  not  therefore 
entitle  the  defendant  to  judgment  upon  the  defense  contain- 
ing the  sarae.^ 

Sec.  89.  A  reply  must  be  made  when. —  Every  material 
allegation  of  new  matter  in  the  answer  not  controverted  by 
the  reply  will  be  taken  as  true;  but  allegations  of  new 
matter  in  the  reply  shall  be  deemed  controverted  by  the 
adverse  party,  as  upon  a  direct  denial  or  avoidance,  as  the  case 
may  require.^  The  question  always  to  be  decided,  therefore, 
is  whether  new  matter  is  alleged.    An  answer  setting  up  pay- 

10.  Code,  sec.  5079.  < Building  Assn  v.  Clark,  43  O.  S. 

2  Whitney  v.  Preston,  29  Neb.  243.  427. 

SKepley  v.   Carter,    49    Kan.   72;  5  Kyser  v.  Cannon,  29  O.  S.  359. 

30  Pac.   Rep.    182  (1892);  Lovell  v.  «0.   Code,    sec.    5081.     Failure  to 

Wentworth,  39  O.  S.  614.  reply  to  a  paragraph  in  an  answer 


92  THE    KEPLT.  [§  90. 

ment  of  a  claim  sued  upon  is  new  matter  requiring  an  answer,* 
and  unless  denied  judgment  may  be  rendered  upon  the  plead- 
ings.- And  so  with  an  answer  setting  up  want  of  considera- 
tion.^ A  plea  of  justification  goes  to  the  entire  cause  of  action, 
and  a  reply  must  be  filed  thereto.*  And  where  in  an  action 
by  a  stockholder  against  a  corporation  it  is  claimed  that  the 
plaintiff  ratified  the  act  complained  of,  a  reply  must  be  made 
thereto.'  And  so  an  answer  to  an  action  against  a  railroad 
company  for  ejecting  a  passenger,  which  admits  the  assault 
but  justifies  it,  must  be  replied  to  before  any  evidence  of 
excessive  force  can  be  introduced.^ 

Sec.  90.  When  reply  need  not  be  made. —  A  reply  need 
not  be  made  when  the  new  matter  contained  in  the  answer 
does  not  constitute  a  defense;''  nor  does  an  allegation  which 
in  effect  amounts  to  merely  an  argumentative  denial  need  a 
reply ;  ^  or  a  plea  of  non  est  factum  in  an  action  on  a  note ;  * 
or  when  an  answer  purports  to  admit  a  certain  fact  stated 
in  the  petition,  when  it  does  not  state  such  a  fact;  ^^  or  when 
the  answer  contains  facts  which  could  have  been  given  under 
a  general  denial. ^^  If  the  legal  effect  of  the  allegations  in 
an  answer  amount  t9  a  general  denial,  it  is  not  new  matter 
requiring  a  reply.^^  Where  an  answer  to  an  action  for  the  re- 
covery of  goods  stored  with  a  warehouseman  denies  plaint- 
iff's allegation  and  sets  up  a  lien  for  storage,  such  lien  is  con- 
troverted without  a  reply.'*    Where  an  answer  denies   the 

containing  a  good  affirmative  defense  ^"West  v.  Cameron,  39  Kan.  736; 

admits  its  truth,  and  entitles  the  de-  18  Pac.  Rep.  894  (1888). 

fendant    to    judgment.      Adams    v.  ^  Singer   Mfg.   Co.  v.  Brill,  9   Am. 

Tuley,  1  Ind.  App.  490.  Law  Rec.  43 ;  s.  C,  5  W.  L.  B.  533. 

iFevvster  v.  Goodard,  25  O.  S.  276;  » Brown  v.  Ready,  20  S.  W.  Rep. 

Edwards  v.  Edwards,  24  O.  S.  402;  1036  (Ky.,  1893). 

Agricultural  Works  v.  Creighton,  21  ^^  Hoisington  v,  Armstrong,  22  Kan. 

Ore.  495;  38  Pac.  Rep.  775.  110. 

2  Id.  "  Corry  v.  Campbell,  25  O.  S.  134. 

3  Brown  v.  Ready,  30  S.  W.  Rep.  12  Insurance  Co.  v.  Kelly,  24  O.  S. 
1036  (Ky.,  1893).  345 ;  Hoffman  v.   Gordon,   15   O.   S. 

4  Nelson  v.  Wallace,  48  Mo.  App.  212;  State  v.  Williams,  48  Ma  210; 
194  (1891).  Simmons  v.  Green,  35  O.  S.  104. 

5  Steinway  t.  Same,  22  N.  Y.  S.  945  is  Eisler  v.   Storage  Co.,   16  Daly, 
(1893).  456. 

<>  Powell  T.  Railway  Co.,  2  Am.  Law 
Rec.  403. 


§  91.]  THE    REPLY. 


93 


commission  of  an  act  and  alleges  that  it  was  done  by  a  third 
party,  it  is  a  mere  denial  requiring  no  reply. ^  In  some  states 
new  matter  not  stating  a  counter-claim  is  deemed  contro- 
verted without  a  reply.-  A  set-oflf  can  never  be  set  up  in  a 
reply  except  to  a  cross-petition.^ 

Sec.  91.  New  matter  in  reply —Departure.— As  before 
stated,  any  new  matter  not  inconsistent  with  the  allegations 
of  the  petition  which  will  constitute  an  answer  to  the  new 
matter  in  the  answer  may  be  set  forth  in  the  reply.*  If  new 
matter  be  set  up  which  should  properly  go  into  the  petition, 
it  need  not  be  stricken  therefrom,  as  it  may  be  permitted  to 
be  incorporated  into  the  petition  by  amendment.''  A  ])laint- 
iff,  however,  in  stating  new  matter  in  a  reply  must  not  de- 
part from  the  grounds  taken  in  his  petition.  He  cannot 
introduce  a  new  cause  of  action,^  nor  refer  to  documents  not 
appearing  in  a  previous  pleading."  It  is  a  rule  that  every 
pleading  subsequent  to  the  ]>etition  on  the  part  of  the  plaintiff 
must  support  the  petition."  Thus,  where  the  petition  charges 
a  direct  undertaking,  and  the  reply  charges  a  guaranty,  it  is 
a  departure.^  And  where  the  petition  charges  suretyship, 
a  reply  which  shows  a  liability  upon  a  subsequent  under- 
taking is  bad  for  departure.^*  But  matter  in  a  reply  which 
explains  or  avoids  the  facts  stated  in  the  answer  does  not 
constitute  a  new  cause  of  action.'^  And  where  an  answer  al- 
leges payment  of  a  note  sued  upon,  and  a  redelivery  of  it  by 
him  to  the  maker,  and  the  reply  admits  the  fact  of  the  rede- 
livery, but  alleges  that  the  maker  had  subsequently,  for  value, 
transferred  it  to  another,  who  in  turn  transferred  it  to  plaint- 
iff, such  a  reply  is  not  a  departure.^-    But  where  a  defendant 

1  Hoffman  V.  Gordon.  15  O.  S.  212.  6  Durbin    v.    Fisk.    16   O.   S.   533; 

2Spriuger  v.  Bien,   16  Daly,  275;  School  Dist.  v.  Caldvvell,  16  Neb.  68. 

Arthur  v.  Insurance  Co.,  78  N.   Y.  "  Insurance  Co.  v.  Brown,  35  Atl. 

462;    Day  v.  Insurance    Co.,  75    la.  Rep.  989  (Md.,  1893). 

700.         '  8  Heath  v.  Doyle,  27  Atl.  Rep.  333 

3  West  V.  Meddock,   16   O.  S.  417;  (R.  I..  189-3). 

Heath  v.  Doyle.  33  Atl.  Rep.  333  (R.  I.,  ■>  Philibert  v.  Burch,  4  Mo.  App.  470. 

1893).  It  is  cured  by  verdict.     Id. 

*  See  ante,  sec.  88 ;  Fanning  v.  In-  lo  Chaplin  v.  Baker,  124  Ind.  885. 

surance  Co.,  37  O.  S.  344.  n  Anderson  v.  Imhoff.  34  Neb.  335. 

5  Hiltz  V.  Scully,  1  C.  S.  C.  R.  555.  i-  Bishop  v.  Travis.  54  N.  W.  Rep. 

460  (Minn.,  1892). 


94:  THE    KEPLY.  [§  92. 

sets  up  an  award  in  a  suit  upon  an  account,  to  which  the 
plaintiff  makes  a  reply  admitting  the  same,  there  is  no  such 
departure  as  will  vitiate  a  judgment  for  the  amount  admitted 
to  be  due.' 

Sec.  1)2.  Remedy  for  departure. —  When  the  reply  is  a  de- 
parture from  the  petition,  the  proper  remedy  for  reaching  the 
irregularity  is  by  demurrer.^  A  motion  to  strike  from  the 
files  and  a  demurrer  cannot  properly  be  made  at  the  same 
time ;  *  and  indeed  it  is  questionable  whether  a  motion  to  strike 
from  the  files  should  ever  be  made  upon  this  ground,  although 
it  has  been  held  that  it  may  bedone.^  It  must  be  remembered, 
however,  that  motions  are  made  with  a  view  to  further  plead- 
ing, and  there  can  be  no  pleading  filed  after  a  reply.  Failing 
to  demur  to  an  insufficient  reply,  however,  does  not  deprive 
the  defendant  of  his  right  to  insist  upon  the  proper  judgment 
after  verdict,^  New  matter  in  a  reply  which  explains  or 
avoids  facts  stated  in  an  answer  does  not  constitute  a  new 
cause  of  action  and  is  therefore  not  subject  to  a  demurrer.^ 

1  Benson  v.  Stein,  34  O.  S.  294,  «  Philibert  v.   Burch,  4  Mo.  App. 

2  Laws  V.  Carrier,  3  C.  S.  C.  R.  80;    470. 

Anderson    v.   Imhoff,   34  Neb.    335  » Brown  v.  Kroh.  31  O.  S.  493. 

(1892) ;  Insurance  Co.  v.  Brown,  25  6  Anderson  v.  Imhoff,  34  Neb.  335. 

Atl.  Rep.  989  (Md.,  1893).  See  chapter  on  Demurrer,  sec.  109. 

3  Laws  V.  Carrier,  supra. 


CHAPTEE  8. 


DEMURRER    TO    PETITION,    ANSWER,    REPLY    AND    COUNTER- 
CLAIM. 


Sec.    93.  Nature  and    eflfect  of 
murrer, 

94.  Demurrer  to  jurisdiction. 

95.  Want  of  legal  capacity  to 

sue. 

96.  Form  of  demurrer  for  want 

of  legal  capacity  to  sue  — 
Corporation. 

97.  Another  action  pending. 

98.  Misjoinder  of  parties  plain t- 

iflE. 

99.  Defect  of  parties  plaintifE 

and  defendant 

100.  Form  of  demurrer  for  de- 

fect of  parties. 

101.  Misjoinder  of  actions. 

102.  Misjoinder      of     separate 

causes  of  action  against 
several  defendants. 

103.  Form  of  joint  demurrer. 


de-    Sec.  104.  Facts  sufficient  to  consti- 
tute a  cause  of  action  not 
stated. 
105.  Must  be  specific. 


106.  Waiver  of  objections. 

107.  When  sustained    for   mis- 

joinder. 

108.  Demurrer  to  part  and  an- 

swer to  part. 

109.  Demurrer  to  reply. 

110.  Form  of  demurrer  to  reply. 
HI.  Demurrer  to  answer. 

112.  Form  of  demurrer  to  an- 

swer. 

113.  Demurrer  to  counter-claim. 

114.  When  demurrer  will  lie  — 

General  rules. 

115.  When   demurrer  will    not 

lie  —  General  rules. 

116.  Miscellaneous  general  rules. 


Sec.  93.  Nature  and  effect  of  demurrer. —  It  seems  hardly 
necessary  to  make  the  statement  that  the  purpose  of  a  demur- 
rer is  to  deny  the  legal  sufficiency  of  a  pleading  and  to  raise 
issues  of  law  upon  the  facts  stated.^  It  is  made  a  pleading  by 
the  code,-  and  like  any  other  pleading  may  be  amended.''  It 
can  only  properly  be  filed  where  the  grounds  for  its  support 
are  apparent  on  the  face  of  the  pleading.*    And  unless  the  ob- 


1  Brennan  v.  Ford,  46  Cal.  7 ;  W^ilson 
V.  Mayor,  15  How.  Pr.  502. 

-O.  Code,  sec.  5059;  Oliphant  v. 
Whitney, 34 ('al.  25 ;  Howard  v.  Rail- 
road Co.,  5  How.  Pr.  206. 

3  Morrison  v.  Miller,  46  la,  84. 

*  O.  Code,  sec.  5062 ;  Neil  v.  Board 
of  Trustees,   31  O.  S.   15;    Getty  v. 


Hudson  River  R,  R.,  8  How.  Pr.  177; 
Wilson  V.  Mayor  of  New  York,  15 
How.  Pr.  500;  Coe  v.  Beckwith,  31 
Barb.  339 ;  6  Abb.  Pr.  6 ,  Simpson  v. 
Loft,  8  How.  Pr.  234;  Mayberry  v. 
Kelly,  1  Kan.  116;  Aurora  v.  Cobb, 
21  Ind.  492 ;  Collins  v.  Davis,  57  la. 
256. 


96 


DEMURRER   TO    PETITION. 


[§  '^i. 


jection  raised  by  it  so  appears,  an  answer  and  not  demurrer  is 
the  proper  pleading.^ 

It  is  a  fundamental  rule  that  a  demurrer  admits  the  truth  - 
of  such  facts  only  as  are  well  pleaded,'  and  does  not  therefore 
admit  a  conclusion  of  law,  unwarranted  by  the  facts  on  which 
it  is  predicated;*  nor  will  it  reach  indefiniteness  and  uncer- 
tainty,' or  duplicity  in  a  pleading.® 

As  a  demurrer  searches  the  whole  record,^  it  will  raise  the 
question  of  the  sufficiency  of  a  petition,  though  filed  to  an 
answer;*  or  it  may  search  a  distinct  and  independent  defense 
set  up  in  a  supplemental  answer  which  is  complete  in  itself.' 
Relief  cannot  always  be  obtained  under  a  general  demurrer, 
but  the  specific  objections  should  be  pointed  out.^''  If  any 
count  of  a  petition  or  answer  is  good,  a  demurrer  to  the  whole 
petition  should  be  overruled.^^     If  the  plaintiff  is  entitled  to 


1  Gillian  v.  Sigman.  29  Cal.  637; 
Moore  v.  Hobbs,  77  N.  C.  65;  Power 
V.  Ames,  9  Minn.  178. 

2  Hance  v.  Hair,  25  O.  S.  349. 

3  Finch  V.  Board  of  Education,  30 
O.  S.  37-41 ;  Faurot  v.  Neff.  32  O.  S. 
446 ;  Peterson  v.  Roach,  32  O.  S.  374 ; 
Railway  Co.  v.  Moore,  33  O.  S.  384; 
Van  Doren  v.  Tjader.  1  Nev.  380: 
Freeman  v.  Hart,  61  la.  525.  Epithets 
charging  fraud  not  admitted.  Kent 
V.  Railway,  etc.  Co.,  144  U.  S.  75. 

*  Railway  Co.  v.  Moore,  33  O.  S. 
384 ;  Finch  v.  Board  of  Education,  30 
O.  S.  41 ;  Peterson  v.  Roach.  32  O.  S. 
374 ;  H.  &  R.  Hydraulic  Co.  v.  Rail- 
road Co..  29  O.  S.  341;  Supervisor, 
etc.  V.  Seaborn.  11  Abb.  X.  C.  461; 
Mitchell  V.  Treasurer.  25  O.  S.  143- 
53 ;  Wilson  v.  Clark,  20  Minn.  367 ; 
Sherwood  v.  Sherwood.  45  Wis.  357 ; 
Kleecamp  v.  Meyer,  5  Mo.  App.  444 : 
Freeman  v.  Hart,  61  la.  525 ;  Hall 
V.  Bartlett,  9  Barb.  297;  Boley  v. 
Griswold,  2  Mont.  447. 

5  Trustees  v.  OdUn,  8  O.  S.  293; 
Lewis  V.  Coulter.  10  O.  S.  451 :  Union 
Bank  v.  Bell  et  al..  14  O.  S.  208 :  Rail- 


way Co.  V.  Iron  Co..  46  O.  S.  44; 
Garard  v.  Garard,  34  N.  E.  Rep.  443 
(Ind.,  1893);  Railroad  Co.  v.  Maddux, 
34  N.  E.  Rep.  511  ilnd.,  1893);  Kirsch 
V.  Derby,  96  Cal.  602 ;  31  Pac.  Rep. 
567. 

6  Corpening  v.  Worthington,  12  S. 
Rep.  426  (Ala.,  1893). 

'  Gordon  v.  Preston,  \V.  341 ;  Trott 
V.  Sarchett  10  O.  S.  241 ;  Hillier  et  al. 
V.  Stewart  et  al.,  26  O.  S.  652 ;  Bliss, 
Code  Pldg..  sec.  417a. 

8  Casper  v.  Hopple,  3  O.  C.  C.  105 ; 
Rothweiler  v.  Ryan.  4  O.  C.  C.  338. 

9  Eckert  v.  Bmkley,  33  N.  E.  Rep. 
619  (Ind..  1893). 

KJ  Lancaster  Co.  v.  Trimble,  34  Neb. 
752. 

n  Ford  v.  Rehman,  W.  434 ;  Carter 
V.  Longworth,  4  O.  384;  Spicer  v. 
Giselman,  15  6.  338;  Schroyer  v. 
Richmond,  16  O.  S.  455;  Pinkum  v. 
Eau  Claire,  81  Wis.  301 ;  51  N.  W. 
Rep.  550  (1892).  In  Churchill  v.  Pac. 
Imp.  Co.,  96  Cal.  490 ;  31  Pac.  Rep. 
560,  it  was  held  that  a  general  de- 
mtirrer  to  a  petition  which  contains 
two  separate  counts  is  good. 


§  94.]  DEMDKRER   TO    PETITION.  97 

any  relief  a  demurrer  is  not  well  taken, ^  and  if  bad  in  part  it 
is  bad  in  toto?  A  general  demurrer  to  an  answer  which  con- 
tains new  matter  and  a  specific  denial  is  not  well  taken  if  the 
allegations  denied  are  material.^  A  demurrable  objection 
cannot  be  taken  b}^  answer;*  and  where  a  demurrer  is  pend- 
ing and  the  defendant  answers  to  the  merits,  the  former  is 
thereby  waived.' 

The  filing  of  a  demurrer  also  waives  any  defect  in  the  serv- 
ice of  process  or  return.*"  AVhere  the  court  is  equally  divided 
the  demurrer  will  be  overruled.'  The  overruling  of  a  demur- 
rer, without  further  order  made,  is  not  a  final  order.^  A  joint 
demurrer  may  be  made,  and  even  though  there  is  no  cause  of 
action  against  one  defendant,  it  is  no  reason  for  sustaining 
a  demurrer  by  him  jointly  with  two  others  against  whom  a 
cause  of  action  appeared."  One  proper  plea  is  good  on  joint 
demurrer.^"  A  pleading  is  not  demurrable  under  the  code 
svstem  unless  it  is  subject  to  some  of  the  objections  made 
grounds  of  demurrer  by  statute.^^  Nor  will  a  demurrer  lie  to 
a  petition  on  a  contract  which  is  merely  voidable,  as  when 
made  on  Sunday,  but  such  an  objection  must  be  raised  by  an- 
s\ver.'2  A  motion  to  strike  from  the  files  and  a  demurrer  can- 
not be  filed  at  the  same  time,  as  the  latter  will  waive  the 
former.^^ 

Sec.  94.  Demurrer  to  jurisdiction. —  A  demurrer  will 
lie  when  the  court  has  no  jurisdiction  of  the  defendant  or 
the  subject  of  the  action,^*  though  a  demurrer  to  the  juris- 

1  George  v,  Edney,  54  N.  W.  Rep.  v.  Murray,  3  O.  C.  C.  431.  Cf.  sec. 
986  (Neb.,  1893);  Qieviet  v.  Lumber    106,  posf. 

Co.,  4  Wash.  St  721;  31  Pac.  Rep.  24.  » Howard  v.  Edwards,  89  Ga,  368; 

2  Carter  v.  Lougworth,  4  O.  384;  May  v,  Jones,  88  Ga.  308;  14  S.  E. 
1  Ves.  248 ;  1  Atk.  450 ;  3  Atk.  44 ;  Rep.  552 ;  Lancaster  v.  Roberts,  33  N. 
Mad.  Ch.  226;  1  John.  Cli.  51 ;  5  E.  Rep.  27  (111.,  1893);  Benedict  v. 
John.  Ch.  186.  Farlow,  27  N  E.  Rep.  307  (Ind.,  1891). 

3  Railroad  Co.  v.  Hall,  26  O.  S.  310.  lo  Kent  v.  Bierce,  6  O.  336 ;  Shroyer 
*  Petrie  v.  Lansing,  66   Barb.  357 ;     v.  Richmond,  16  O.  S.  455. 

Bebinger  v.  Sweet,  1  Abb.  N.  C.  266.  "  Boone,  Code  PL,  sec.  41 ;  Marie  v. 

5  Vore  V.  Woodruff,  29  O.  S.  245.  Garrison,  83  N.  Y.  14 

6  Klonne  v.  Bradstreet,  2  Handy,  74.  12  Western  Union  Tel.  Co.  v.  Esk- 
'  Putnam  v.  Rees,  12  O.  21.  ridge,  33  N.  E.  Rep.  238  (Ind.,  1893); 
8  Baldwin  v.  Creed,  W.  729 ;  Hoi-  Hoavenridge  v.  Monday.  34  Ind.  28. 

brook  V.  Connelly,  6  O.  S.  199 ;  Hart       i^  Wyman  v.  Hayes,  1  Clev.  Rep.  17a 

»  O.  Code,  sec.  5062. 


98  DEMCKRER   TO   PETITION.  [§  95. 

diction  of  the  person  is  seldom  available.^  The  phrase  "  that 
the  court  has  no  .jurisdiction  of  the  person"  refers  tu  the 
power  of  the  court  over  the  person,  and  not  to  the  regu- 
larity of  the  proceedings.^  Where  a  petition  shows  a  defend- 
ant to  be  within  a  county,  it  cannot  be  demurred  to  merely 
because  the  return  of  a  summons  shows  him  •'  not  to  be  found."  ^ 
Nor  will  it  reach  defective  service,  but  is  limited  to  the  ques- 
tion whether  or  not  the  defendant  is  such  a  person  as  may  be 
subjected  to  the  process  of  the  court.*  The  want  of  jurisdic- 
tion of  the  person  or  subject-matter  of  the  action  can  only  be 
taken  advantage  of  by  demurrer  when  it  is  apparent  on  its 
face,*  and  if  not  so  apparent  by  answer/  but  it  is  not  waived 
if  not  so  raised.'  Want  of  jurisdiction  being  a  specific  ground 
of  demurrer  should  be  specially  assigned.  A  demurrer  to  the 
sufficiency  of  a  petition  will  not  therefore  raise  the  question 
of  jurisdiction.^  An  objection  to  the  jurisdiction  of  the  court 
cannot  be  waived  by  failure  to  demur  or  answer,"  but  may  be 
taken  advantage  of  at  any  time  before  judgment.^"^ 

Sec.  95.  Want  of  legal  capacity  to  sue. —  A  demurrer  on 
the  ground  that  the  plaintifiF  has  not  legal  capacity  to  sue  can 
be  sustained  only  when  the  pleadings  disclose  incapacity,  as 
infancy,  lunacy,  or  when  under  some  other  disability."  The 
objection  when  apparent  on  the  face  of  the  petition  is  properly 
taken  by  demurrer,'-'  and  unless  so  raised,  or  by  answer,  it  is 

1  Bliss'  Code  Pldg.,  sec.  405.  *  Atlantic,  etc.  Tel.  Co.  v.  Railroad 

2  Nones  v.  Hope  Ins.  Co.,  5  How.     Co.,  87  N.  Y.  355. 

Pr.  96;  Railroad  Co.  v.  Railroad  Co.,  'O.  Code,  sec.  5064;  4  Abb.  N.  C. 

16'AbU  N.  C.  249;   Winfield  Town  111;   Blossom  v.  Barrett,   37  N.  Y. 

Co.   T.   Maris,  11  Kan.  128;  Boone,  434;  Fourth  Nat'l  Bank  v.  Scott,  31 

Code  Pldg.,  sec.  48.  Hun,  301 ;  Patchin  v.  Peck,  38  N.  Y. 

3  Swann  v.  Iron  &  Coal  Co.,  58  Ga.  39 ;  Zabriskie  v.  Smith,  13  N.  Y.  322. 
199.  ?Saxton    v.    Seiberling,  48    0.   & 

*  Railroad  Co.  v.  Railroad  Co.,  16  554 ;  29  N.  R  Rep.  179. 

Abb.  Pr.  (N.  S.)  249;  Nones  v.  Insur-  SQ.  Code.  sec.  5064. 

ance  Co.,  5  How.  Pr.  96;  People  v.  lo  Youngstown  v.  Moore,  30  O.  S. 

Mt  Morris,  27   N.  E.  Rep.  757  (111.,  133. 

1891).     It  cannot  be  reached  on  a  ^Dale    v.   Thomas,   67    Ind.   570; 

motion  to  set  aside  a  defective  sum-  Farrell  v.  Cook,  16  Neb.  483 ;  Win- 

mons.      A.   &  T.   Telegraph   Co.  v.  field  Town  Co.  v.  Maris,  11  Kan.  128; 

Railroad  Co.,  87  ,N.  Y.  355.  Boone.  Code  PL,  sec.  48. 

6 Southern  Pacific  Ca  v.  Denton,  izuaskins  et  al  v.  Alcott  et  al,  13 

146  U.  S.  202 ;  Adams  v.  Store  Serv-  O.   S.   210 ;  Koenig  v.  Nott,  2  Hilt 

ice  Co.,  13  N.  Y.  S.  118.  323. 


§95.] 


DEMUBREB   TO   PETITION. 


99 


waived.^  The  question  of  capacity  must  affirmatively  appear 
from  the  facts  stated,  and  not  from  a  want  of  facts.'^  As  cor- 
porate capacity  is  an  essential  fact  to  be  alleged  in  a  suit  by 
a  corporation,  if  it  appears  upon  the  face  of  the  petition  that 
a  plaintiff  suing  as  a  corporation  is  not  such  in  fact,  a  demur- 
rer is  the  proper  remedy.'  If,  however,  it  is  not  so  apparent 
it  must  of  course  be  taken  by  answer.''  This  will  apply  to 
foreign  corporations  under  the  statute  requiring  them  to 
register  before  they  can  sue  or  be  sued ;  ^  and  if  it  appears 
that  a  foreign  corporation  has  not  complied  with  the  laws  of 
registration,  so  called,  then  a  demurrer  may  be  filed  thereto, 
and  if  it  is  not  so  apparent  it  should  be  raised  by  answer.*^ 
If  it  appears  that  the  plaintiff  is  an  infant  and  sues  in  his  own 
name  a  demurrer  will  lie.''  Where  a  person  brings  an  action 
in  a  representative  capacity  but  fails  to  make  it  apparent  that 
he  so  sues,  demurrer  will  lie  rather  than  answer.®  To  raise 
the  question  of  capacity  to  sue  it  should  be  specially  assigned, 
and  cannot  be  raised  under  any  of  the  other  grounds,  as  that 
the  facts  do  not  constitute  a  cause  of  action.^    Where  there 


1  Haskins  v.  Alcott,  13  O.  S.  210- 
217;  Hoop  V.  Plummer,  14  O.  S. 
448-9 ;  Buckingham  v.  Buckingham, 
36  O.  S.  68-78;  Fulton  Fire  Ins. 
Co.  V.  Baldwin,  37  N.  Y.  648 ;  Hast- 
ings V.  McKinley,  1  K  D.  Smith,  273 ; 
Tapley  v.  Tapley,  10 '  Minn.  448; 
Palmer  v.  Davis,  28  N,  Y.  242;  Van 
Amringe  v.  Barnett,  8  Bosw.  357 ; 
Jones  V.  Steele,  36  Mo.  324;  Petti- 
grew  V.  Washington  Co.,  43  Ark.  33. 

2  Boone,  Code  PL,  sec.  48 :  Phcenix 
Bank  v.  Donnell,  41  Barb.  571 ;  40 
N.  Y.  410;  Minneapolis  Harvester 
Works  V.  Libby,  24  Minn.  327 ;  State 
V.  Torinus,  22  Minn.  272 ;  Am.  But- 
ton Hole  Co.  V.  Moore,  2  Dak.  280- 
290. 

8  Phoenix  Bank  v.  Donnell,  40  N.  Y. 
4ia    See  sec.  990,  post. 

*U. 

*  See  sec.  990,  post. 

•In  Elektron  Mfg.  Co.  v.  Jones 
Bros.  Electric  Co.,  8  O.  C.  C.  311,  the 
circuit  court  of    Hamilton   county, 


Ohio,  held  that  a  general  denial  will 
not  raise  the  question  of  the  right  or 
capacity  of  the  plaintiff  to  sue ;  and 
suggests  that  if  this  is  desired,  a  spe- 
cif plea  in  the  nature  of  a  plea  of 
abatement  should  be  made.  The  pre- 
vailing view  is  that  the  question 
should  be  raised  as  pointed  out  in 
the  text ;  and  it  is  in  harmony  with 
principles  discussed  in  another  sec- 
tion. See  sec.  99.  Pleas  in  abate- 
ment are  in  fact  abolished.  The  an- 
swer raises  the  same  questions.  Wei) 
V.  Guerin,  42  O.  S.  299. 

"  Bartholomew  v,  Lyon,  67  Barb.  86. 

SMoir  V.  Dodson,  14  Wis.  279; 
Secer  v.  Pendleton,  47  Hun,  281.  So 
where  petition  fails  to  show  qualifi- 
cation of  guardian.  Spillane  v.  Mis- 
souri P.  Ry.,  Ill  Mo.  555;  20  S.  W. 
Rep.  293.  As  to  foreign  administra- 
tor, see  Robbins  v.  Wells,  26  How. 
Pr.  15. 

9  Saxton  V.  Seiberling,  48  O.  S.  ""i :. 


100  DEMUKEER   TO    PETITION.  [§§  96,  97. 

are  several  parties  plaintiff  and  it  appears  that  any  one  of 
theni  has  capacity  to  sue,  a  demurrer  cannot  be  sustained.^ 

Sec.  90.  Form  of  demurrer  for  >vaut  of  legal  capacity  to 
sue  —  Corporation. — 

The  defendant  demurs  to  the  petition  herein,  and  states  as 
the  grounds  therefor : 

1.  That  it  appears  by  the  petition  that  the  plaintiff  has  not 
legal  capacity  to  sue. 

2.  That  it  does  not  appear  that  the  plaintiff  is  a  corporation 
dul}^  incorporated  and  entitled  to  sue. 

And  for  a  further  and  separate  ground  of  demurrer  to  said 
petition,  this  defendant  states : 

That  the  petition  does  not  state  facts  sufficient  to  constitute 
a  cause  of  action. 

Note. —  This  may  be  varied  to  suit  the  circumstances.  See  ante,  sec.  95. 
If  a  guardian  has  not  properly  quahfied,  so  state,  etc.  The  codes  generally 
provide  that  the  grounds  may  be  stated  in  the  language  of  the  statute,  ex- 
cept as  to  want  of  capacity  to  sue  and  defect  of  parties,  which  must  be 
specifically  pointed  out.  See  Bryant's  Code  Pldg..  p.  214.  and  his  table  of 
Code  References,  p.  352,  No.  143.  which  is  a  most  excellent,  convenient  and 
useful  compilation  of  references. 

Sec.  97.  Another  action  pending. —  A  demurrer  lies  when 
tliere  is  another  action  pending  between  the  same  parties.- 
The  pendency  of  a  former  suit  between  the  same  parties  for 
the  same  cause  is  matter  of  defense  to  a  second  suit  in  a  court 
of  the  same  state,  which  has  its  foundation  in  justice  and  is 
firmly  established.^  It  must  appear  that  the  suit  already  pend- 
ing will  afford  the  plaintiff  the  relief  to  which  he  would  have 
been  entitled  under  the  petition  demurred  to ;  *  the  reason 
beins:,  if  full  relief  can  be  had  in  one  suit  no  other  shall  be 
maintained.^  The  pendency  of  an  action  in  one  state  has  been 
held  to  be  no  bar  to  a  subsequent  action  for  the  same  cause  in 
another  state.®  A  demurrer  will  not  be  sustained  where  a  like 
action  is  pending  in  a  court  of  another  state  or  in  the  United 
States  courts.'  This  is  an  objection  which  can  very  seldom 
appear  on  the  face  of  the  petition,^    A  demurrer  cannot  be 

1  O'Callaghan  v.  Bode.  84  Cal.  489 ;  Browne  v.  Joy,  9  Johns.  221 ;  Walsh 
24  Pac.  Rep.  269.  v.  Durkin.  12  Johns.  99. 

2  O.  Code,  sec.  5062.  "  Boone's  Code  Pldg.,  sec.  49 ;  Bur- 
•^  Weil  V.  Guerin,  42  O.  S.  301.              rows  v.  Miller,  5  How.  Pr.  51 ;  4  How. 

4  Law  V.  Rigby,  4  Brown  Cli.  60.        Pr.  349 ;  Sloan  v,  McDowell,  75  N.  C. 

5  Boone's  Code  Pldg..  sec.  49 ;  Gro-  29.  Cf.  Williams  v.  Ayrault,  31  Barb, 
shen  V.  Lyon,  16  Barb.  461 ;  Daumb-    364. 

man  v.  Schulting,  51  How,  Pr.  337.  »  Nash's  Pldg.,  vol.  1,  p.  155. 

s  Burrows  v.  Miller,  5  How.  Pr.  51 ; 


§§  98,  99.]  DEMUKKER   TO   PETITION.  101 

sustained  if  the  action  pending  is  for  relief  which  cannot  be 
granted  in  that  action.^ 

Sec.  98.  Misjoinder  of  parties  plaintiff. —  A  misjoinder  of 
parties  is  ground  for  demurrer  and  can  be  taken  advantage 
of  in  no  other  way.^  By  a  misjoinder  of  parties  is  meant  an 
excess  of  parties.^  A  demurrer  upon  this  ground  should  be 
taken  to  the  whole  petition.1  The  code  does  not  recognize 
the  misjoinder  of  parties  defendant  as  a  cause  for  demurrer.^ 
A  defendant  improperly  joined  may  demur  for  the  reason 
that  no  cause  of  action  is  stated  against  him,"  Where  parties 
are  improperly  joined,  advantage  of  this  misjoinder  cannot 
be  taken  by  parties  properly  joined.^  The  demurrer  must 
show  wherein  the  misjoinder  exists,  by  pointing  out  the  par- 
ticular plaintiffs  misjoined,  giving  the  reasons.^  It  has  been 
held  in  Ohio  that  a  misjoinder  of  parties  may  be  raised  by 
general  demurrer.^  If  the  misjoinder  appears  on  the  face  of 
the  petition,  objection  must  be  raised  by  special  demurrer, 
and  if  not  so  taken  is  waived.^"  If  it  does  not  appear  on  the 
face  of  the  petition,  an  answer  is  proper,  and  it  may  be  a 
ground  of  nonsuit.'^  If  a  petition  makes  a  good  cause  against 
some  of  the  parties,  or  against  each  of  them  separately,  if  they 
were  improperly  joined  a  demurrer  will  lie.^- 

Sec.  99.  Defect  of  parties  plaintiff  and  defendant. —  De- 
murrer on  the  ground  of  defect  of  parties  means  a  deficiency 

1  Haire  v.  Baker,  5  N.  Y.  357.  Lewis  v.  Williams.  3  Minn.  151-154; 

2 burns  v,  Ashwoith,  72  N.  C.  496,  Belkrfap  v.  Caldwell.  83  Ind,  14, 

3  Neil  V,  Trustees,  etc.,  31  O.  S.  15-  '  Phister  v.  Dacey  (Sup.  Ct.  Cal.),  3 

20 ;    Powers  v.  Bumcratz,  12  O.  S.  West.  C,  Rep.  303. 

273 ;  Palmer  v.  Davis,  28  N.  Y.  245 ;  8  Fultz  v,  Walters,   2  Mont,    165 ; 

Berkshire  v.  Shultz,    25    Ind.    523 ;  Barney  v,  Drexel,  33  Hun,  419 ;    19 

Mornan    v,    Carroll,    35    Iowa,    22;  N.   Y.  Week.    Dig.   515;    Irwine  v. 

Truesdell  v.  Rhodes,  26  Wis.  215-220 ;  Wood,  7  Colo.  477, 

Pomeroy  on  Rem.,  sec.  287.  ^Bartges  v.  O'Neil,  13  O.  S.  72,  76, 

^Hammond  v,  Hammond,  28  Abb.  C'OHira,Tennantv,Pfester,51Cal.511. 

N.  C.  318,  lOQ-Cctllaghan  v.  Bode,  84  Cal,  489; 

5 Code,  sec.  .5062;  Clark   v.  Bayer,  24  Pac.   Rep.   269  (18—);  Gellam  v. 

82  O,  S.  299-311;  Palmer  v.  Davis,  Sigman,   29    Cal,    637;    Tennant   v, 

28  N,  Y.  242;    Richtmyer  v.  Richt-  Pf ester,  51  Cal,  511-515;  Patchin  v, 

myer,  50  Barb.  55 :  Fish  v.  Hose,  59  Peck,  38  N,  Y.  39. 

How.  Pr.  238;  Powers  v.  Bumcratz,  ''South  Fork,  etc.  v.  Snow,  49  Cal. 

12  O.  S.  273 ;  Neil  v.  Trustees,  etc.,  31  155. 

O.  S,  15-20.  12  Shamokin  Bank  v.  Street,  16  O.  S. 

6  Nichols  V,   Drew,  94  N.   Y.   22;  !-& 


102  DEMUKEER   TO    PETITION.  [§  99. 

of,  and  not  too  many,  parties.^  The  same  general  principle 
underlying  all  grounds  of  demurrer  is  applicable  here.  When 
the  defect  appears  on  the  face  of  the  petition  it  may  be  de- 
murred to,  but  when  it  does  not  so  appear  and  it  is  necessary 
to  introduce  evidence  to  make  the  defect  apparent,  then  an 
answer  is  the  proper  remedy.^  A  demurrer  to  a  petition  upon 
the  ground  of  defect  of  parties  should  specifically  point  out 
and  name  those  who  should  have  been,  but  were  not,  made 
parties;^  and  no  one  can  demur  to  a  petition  upon  this 
ground  unless  his  own  interest  requires  that  the  defect  be 
cured.*  A  demurrer  for  non-joinder  of  parties  is  well  taken 
where  it  appears  that  the  court  cannot  determine  the  contro- 
versy before  it  without  prejudice  to  the  rights  of  others,  nor 
by  saving  those  rights.'^  In  an  action  against  one  of  two  obli- 
gors or  contractors  on  a  joint  obligation  or  contract,  the  pe- 
tition is  demurrable  for  defect  of  parties.®  And  where  one  of 
the  joint  owners  is  not  made  a  party  plaintiff,  but  the  defend- 
ant fails  to  avail  himself  of  such  defect,  he  cannot  be  allowed 
to  show  such  non-joinder  in  dimmution  of  the  amount  to  be 
recovered.'  A  personal  representative  of  a  deceased  partner 
cannot  be  joined  as  a  party  defendant  with  the  surviving 
partner  to  an  action  for  a  partnership  debt,  when  the  petition 
does  not  show  that  the  same  can  be  made  of  the  survivor.^    A 

1  Richtmyer  v.  Same.  50  Barb.  55 ;  defect  of  parties  apparent  on  the  face 
Railroad  Co.  v.  Schuyler,  17  N.  Y.  of  a  petition  can  only  be  raised  by 
592.  Whei'e  there  is  a  misjoinder,  or  demurrer.  An  answer  raising  a  de- 
an excess  of  parties  plaintiff,  there  is  feet  of  parties  tenders  an  issue  to 
not  a  defect  of  parties.  It  must  be  a  be  tried.  McCormick  v.  Blossom,  40 
defect,  not  an  excess.  McKee  v.  Eaton,  Iowa.  256 ;  Lowry  v.  Harris,  12  Minn. 
26  Kan.  226 ;  Murray  v.  McGarigle,  69  255. 

Wis.  484  (1887).  3  Dewey  v.  State,  91  Ind.  182 ;  New- 

2  Petition  filed  by  husband  and  come  v.  "Wiggins,  78  Ind.  305,  315 ; 
wife  showing  no  cause  of  action  in  Cox  v.  Bird,  65  Ind.  277 ;  Durham  v. 
their  favor  jointly  may  be  demurred  Bischof,  47  Ind.  211 :  Baker  v.  Haw- 
to.  Bartges  v.  O'Neil.  13  O.  S.  72.  kins,  29  Wis.  576;  Murray  v.  Mc- 
The  right  to  make  the  defense  by  Garigle.  69  Wis.  483-90 ;  O'Callaghan 
answer  is  not  waived  by  failure  to  so  v.  Bode,  84  C5al.  489. 

demur.   Masters  v.  Freeman,  17  O.  S.  *  Newbould  v.  Warrin,  14  Abb.  Pr. 

323.     If  no  objection  be  made  by  an-  80. 

swer  or  demurrer  it  is  waived.    Hoop  ■''Wallace  v.  Eaton,  5  How.  Pr.  99. 

V.  Plummer.  14  O.  S.  448.      If  not  « Eaton  v.  Balcom,  33  How.  Pr,  80. 

raised    by   demurrer    it    is    waived.  "  Zabriskie  v.  Smith.  13  N.  Y.  323. 

Ryan  v.  MuDinix,  41  Iowa,  631.     A  »  Voorliis  v.  Ciiilds,  17  N.  Y.  354 


§§  100,  101.]  DEMURRER    TO    PETITION.  103 

demurrer  on  the  ground  that  the  petition  does  not  state  facts 
sufficient  to  constitute  a  cause  of  action  does  not  raise  the 
question  of  defect  of  parties. 
Sec.  KM).  Form  of  demurrer  for  defect  of  parties.— 

[Cttptio7i.'] 

Defendant  [or,  plaintiff]  demurs  to  plaintiff's  petition  [or, 
defendant's  answer]  upon  the  following  grounds,  to  wit: 
1.  That  there  is  a  defect  of  parties  plaintiff  in  this:  A.  B.  is 
a  necessary  party  plaintiff  and  should  be  joined;  or,  that  there 
is  a  defect  of  parties  defendant  in  this :  A.  B.  is  a  party  de- 
fendant and  should  be  joined. 

Note.—  See  sec  99,  ayite. 

Sec.  101.  Misjoinder  of  actions.—  As  the  code  specifically 
points  out  what  classes  of  actions  may  be  joined,^  it  follows 
that,  where  these  provisions  are  not  complied  with  by  the 
pleader,  objections  may  be  taken  thereto  by  the  defendant. 
This  may  be  done  by  demurrer,-  and  the  plaintiff  compelled 
to  elect  upon  which  of  the  actions  improperly  joined  he  will 
rely.'  Or  it  may  also  be  taken  by  answer.*  A  demurrer  will 
lie  where  two  causes  of  action  are  improperly  joined,  one  be- 
ing good  and  one  bad.'  It  is  no  ground  of  demurrer  that 
separate  causes  of  action  which  may  be  united  in  the  same 
petition  are  all  stated  in  one  count  and  not  separately  as  re- 
quired by  the  code.  It  has  been  stated  elsewhere  that  demur- 
rer is  not  the  proper  remedy  in  such  cases.*  A  demurrer  on 
the  ground  that  there  is  a  misjoinder  of  causes  of  action  will 
lie  only  where  the  joinder  itself  is  forbidden,  such  as  uniting 
a  cause  of  action  in  tort  with  one  arising  on  contract,  and  has 
no  reference  whatever  to  the  manner  in  which  causes  are 
joined.^  If  it  appears  that  t'.iere  are  two  causes  of  action  im- 
properly joined,  it  will  vitiate  the  whole  petition,  even  though 
there  are  other  causes  of  action  properly  joined.^  The  fact 
that  two  causes  of  action  are  improperly  joined  in  one  count 
does  not  deprive  the  defendant  of  his  right  to  demur  thereto 

iSee  ch.  3,  ■'  Higgins  v.  C'richton,  63  How.  Pr. 

2  O.  Code,  sec.  5062.  354 ;  2  Civ.  Pioc.  R.  317. 

3  Boone's  Pldg..  sec.  53.  *  See  ante.  sec.  20. 

*  Cloon  V.  Insurance  Co..  1  Handy.  '  Hardy  v.  Miller.  11  Neb.  395  (1881). 
82;  Bratton  V.  Smith.  2  W.  L.  M.  497  ;  9  Stanton  v.  Railway  Co.,  15  Civ. 
James  v.  Wilder.  25  Minn.  305.  Proc.  R  293. 


104-  DEMUKKEK    TO    PETITION.  [§§  102-104. 

for  misjoinder.^  The  purpose  of  the  demurrer  upon  this  ground 
is  to  compel  the  plaintiff  to  elect  upon  which  of  the  two  or 
more  causes  of  action  improperly  united  he  will  proceed.^ 

Sec.  102.  Misjoinder  of  separate  causes  of  action  against 
several  defendants.  —  Where  causes  of  action  are  joined 
against  two  or  more  defendants  which  do  not  affect  all  of 
them,  a  demurrer  will  lie  thereto  at  the  instance  of  a  defend- 
ant who  is  so  affected.^  It  is  not  to  the  misjoinder  of  parties ; 
and  the  rule  that  a  defendant  against  whom  a  good  cause  of 
action  is  pleaded  may  not  demur  because  too  many  are  joined 
does  not  apply.*  An  action  against  trustees  or  executors 
for  negligence  cannot  be  joined  with  one  against  a  lessee  upon 
a  contract.* 

Sec.  108.  Form  of  joint  demurrer. — 

Now  come  [naming  defendants]  And  separately  and  sever- 
ally demur  to  the  plaintiff's  cause  of  action,  and  say  that  said 
petition  does  not  state  facts  sufficient  to  constitute  a  cause  of 
action  against  them  jointly  or  severally. 

Note.—  Hanover  School  Tp.  v.  Gant,  135  Ind.  557 ;  Axtel  v.  Chase,  83 
Ind.  546. 

Sec.  101.  Facts  sufficient  to  constitute  a  cause  of  action 
not  stated. —  The  extent  or  scope  of  this  ground  of  demurrer 
is  so  far  reaching  that  it  will  be  impracticable  to  attempt 
to  enter  into  anything  like  a  full  discussion,  except  to  state 
a  few  general  rules.  That  a  petition  may  be  subject  to  a 
demurrer  upon  this  ground,  the  facts  stated,  if  admitted  to 
be  true,  must  be  such  as  will  warrant  the  court  in  holding 
that  there  is  a  cause  of  action  stated ;  ^  and  this  must  be  ap- 
parent from  all  the  allegations  in  the  petition."  In  determin- 
ing this  question  it  is  well  understood  that  mere  matters  of 
form  will  be  disregarded,^  so  that  it  matters  not  if  facts  are 

1  Taylor  v.  Elevated  Railway,   52  5  Compton  v.  Hughes,  38  Hun,  377, 

N.  Y.  S.  299 ;  Wiles  v.   Suydam,  64  378. 

N.   Y.    173;    Goldberg  v.    Utley,   60  » People  v.  Mayor,  28  Barb.  240; 

N.  Y.  427.  Spear  v.  Dovi-ning.  23  How.  Pr.  30. 

-Sullivan   v.    Railroad   Co.,  1  Civ.  '  Piersou  v.  McCurdy,  61  How.  Pr. 

Proc.  R  285.  134 ;  Calvo  v.  Davies,  73  N.  Y.  211. 

3  0.  Code,  sec.  5062;  Nichols  v.  ^  Lyon  v.  Fish,  20  O.  100;  Trust- 
Drew,  94  N.  Y.  22 ;  Church  v.  Stan-  ees.  etc.  v.  Robinson,  AV.  486 ;  Wood 
ton,  44  Hun,  628 ;  Hess  v.  Railroad  v.  Funk,  7  O.  (pt.  1),  196 ;  Burns  v. 
Co.,  29  Barb.  391.  Patterson,  2  Haudj',  270. 

<Id. 


§  104.]  DEMUKRER   TO    PETITION.  105 

artificially  stated,^  or  that  they  are  imperfectly  or  informally 
statecl,^  if  a  good  cause  of  action  is  set  forth.  It  must  be  as- 
sumed that  not  only  the  facts  stated  are  true,  but  that  such 
as  may  b}^  reasonable  and  fair  intendment  be  implied  are 
also  true.^  A-  failure  to  demur  on  the  ground  that  the  peti- 
tion does  not  state  facts  sufficient  to  constitute  a  cause  of  ac- 
tion is  not  a  waiver  of  the  objection,  nor  does  it  conclude 
one's  right  to  insist  on  it  in  any  stage  of  the  proceedings  on 
error.'* 

A  general  demurrer  will  not  lie  to  a  petition  stating  a 
prima  facie  cause  of  action,^  nor  to  a  defective  statement  of 
facts  ;^  nor  will  it  reach  the  question  of  the  jurisdiction  of  the 
court,^  or  defect  of  parties.^  Where  a  petition  on  its  face 
shows  a  cause  of  action  barred  by  the  statute  of  limitations, 
no  legal  cause  of  action  is  stated,  and  a  demurrer  thereto  on 
the  ground  that  the  petition  does  not  state  facts  sufficient  to 
constitute  a  cause  of  action  raises  the  question  of  the  statute 
of  limitations  as  well  as  other  defects  in  the  petition."  A  de- 
murrer in  the  language  of  the  statute:  "  That  the  petition 
does  not  state  facts  sufficient  to  constitute  a  cause  of  action,*' 
is  sufficiently  specific.^"  An  objection  that  there  is  another 
action  pending  cannot  be  made  under  a  demurrer  upon  this 
ground,"  nor  can  a  question  whether  a  petition  states  a  cause 
of  action  be  considered  upon  a  motion  to  dismiss.'- 

1  Wetmore  t.  Porter,  92  N.  Y.  76.  '  Railroad  Co.  v.  Bridgett,  94  Ind. 

2  Marie  v.  Garrison,  83  N.  Y.  14.  216. 

SMilliken  v.   W.   U.   Tei.    Co.,  110  8  Grain  v.  Aldrich,  38  Cal.  514. 

N.  Y.  403.  9  Seymour  t.  Railway  Co.,  44  O.  S. 

■iNash,  PI.   &  Pr.    160;    Gould  v!  12;  S.  P.  Valley  Ry.  Co.  v.  Franz,  43 

Glass,  19  Barb.  179,  186 ;  Montgomery  O.  S.  623-625 ;  Vore  v.  Woodford,  29 

Co.    Bank   v.    Albany   City    Bank,  7  O.  S.  245. 

N.   Y.  459:    Coffin  v.   Reynolds,   37  lo  Wilson  v.  Polk  Co.,  112  Mo.  126; 

N.   Y.   640;  Higgins  v.    Freeman,   2  O'Rourke  v.  Sioux  Fails,  54  N.  W. 

Duer,    650;    Budd  v.   Bingham,    18  Rep.  1044  (S.  D.,  1893);  Rowland  v. 

Barb.  494.  Kenosha  Co.,   19  Wis.  247;  Kent  v. 

•^Campbell  v.  Taylor,   3  West.  C.  Snyder,  30 Cal.  606. 

Rep.  541  (Sup.  Ct.  Utah).  n  Williams  v.  Lewis,  124  Ind,  344; 

6  Trustees,  '^tc.  v.  Odlin,  8  O.  S.  293:  24  N.  E.  Rep.  733  (Ind.,  1890). 

Lewis  V.  Coulter.  10  O.  S.  451 ;  Union  12  Richmond  v.  Brookings,  48  Fed. 

Bank  of  Massillon   v.  Bell  et  al.,  14  Rep.  241. 
O.  S.  200;   Everett  v.  Waymire,  30 
O.  S.  308. 


106  DEMUKREK   TO   PETITION.  [§§  105,  106. 

Sec.  105.  Must  be  specific. —  The  demurrer  must  specify 
the  grounds  of  objection  to  the  petition,  and  unless  it  does  so 
it  shall  be  regarded  as  objecting  only  that  the  petition  does 
not  state  facts  sufficient  to  constitute  a  cause  of  action,  or 
that  the  court  has  not  jurisdiction  of  the  subject-matter.'  The 
codes  differ  upon  this  question.  Under  some  the  demurrer 
will  be  disregarded  unless  the  grounds  are  specifically  set 
forth,'^  and  the  rules  for  specification  are  necessarily  more 
stringent.  In  New  York  it  is  held  that,  in  demurring  upon 
the  ground  of  defect  of  parties,  the  names  of  those  who 
should  have  been  made  parties  should  be  set  forth,  and 
the  same  view  is  entertained  elsewhere.'  Nothing  more 
is  required  than  that  the  party  demurring  shall  clearly 
specify  upon  which  of  the  several  grounds  enumerated  he 
relies.^ 

Sec.  106.  Waiver  of  objections. — When  any  of  the  defects 
enumerated  in  section  5062  do  not  appear  on  the  face  of  the 
petition,  the  objection  may  be  taken  by  answer;  and  if  no 
objection  be  taken  either  by  demurrer  or  answer,  the  de- 
fendant shall  be  deemed  to  have  waived  the  same,  except 
only  the  objection  to  the  jurisdiction  of  the  court,  and  that 
the  petition  does  not  state  sufficient  facts  to  constitute  a  cause 
of  action.* 

If  a  demurrer  and  an  answer  be  filed  at  the  same  time  to 
the  same  pleading,  tendering  issues  to  the  entire  action,  it  is 
a  waiver  of  the  demurrer.*^  A  defendant  cannot  demur  and 
answer  to  the  same  matter.'^  An  objection  not  taken  advan- 
tage of  by  answer  or  demurrer  was  deemed  waived  where  the 
defendant  joined  issue  and  went  to  trial,  although  the  petition 
was  demurrable,  as  not  stating  facts  sufficient  to  constitute 

« O.  Code,  sec.  5063.  *  Calvin  v.  State  of  Oliio,  12  O.  S. 

2N.  Y.  Code,  sec.  490;    Dodge  v.  60;  Danville,   etc.     Turnpike  Co.  v. 

Colby,  108  N.  Y.  445.  Stewart,  3  Met  (Ky.)  119;  Hosier  v. 

3  See  sec.  99,  ante.  Eliason.  14  Ind.  523 ;  Stocking  v.  Bur- 

*  Durkee  v.  Saratoga,  etc.  R.  R.,  4  nett,  10  O.  137 ;  Smead  v.  Cluisfield, 

How.  Pr.  226 ;  Getty  v.  Hudson  River  1  D.  17. 

R.  R.  Co.,  8  How.   Pr.  177 ;  De  Witt  "  Davis  v.  Hines,  6  O.  S.  473 ;  Spell- 

V.  Swift,  3  How.  Pr.  281 ;  Lagow  v.  man  v.  Weider,  5  How.  Pr.  5 ;  Muun 

Neilson.  10  Ind.  183.  v.  Barnum,  1  Abb,  Pr.  281 ;  12  How. 

5Code,  sec.  5064.  Pr,  563. 


§§  107,   lOS.]  DEML'RREE   TO   PETITION.  107 

a  cause  of  action.^     When  }3roper  service  is  made,  misnomer 
is  not  fatal  to  jurisdiction.^ 

Failing  to  except  to  the  overruling  of  a  demurrer  to  a  peti- 
tion, and  answering  over,  waives  error  in  overruling  the  demur- 
rer, if  the  answer  supplies  the  defect  in  the  petition.^  Such  is 
not  the  case  where  a  demurrer  to  the  statute  of  limitations  or 
statute  of  frauds  is  erroneously  overruled/  The  objection  that 
the  petition  does  not  state  facts  sufficient  to  constitute  a  cause 
of  action  may  be  made  at  any  time  before  final  judgment  on 
error,  and  can  never  be  waived  under  the  Ohio  code.^  Where  it 
appears  in  a  petition  in  an  action  brought  by  two  plaintiffs  that 
the  cause  of  action  is  not  joint  but  several,  the  right  to  set  up 
such  defense  by  answer  is  not  waived  by  failure  to  demur.' 
An  objection  to  a  defect  of  parties  is  waived  unless  taken  by 
demurrer  or  answer;'  and  so  with  misjoinder  of  parties,^  or 
of  causes  of  action,^  or  the  pendency  of  another  action.''^ 

Sec.  107.  Wlieu  siistaiued  for  misjoinder. —  When  a  de 
murrer  is  sustained  on  the  ground  of  misjoinder  of  several 
causes  of  action  in  a  petition  or  answer,  the  court,  on  motion 
of  the  party  who  filed  the  pleading,  shall  allow  him,  with  or 
without  costs,  in  its  discretion,  to  file  several  petitions,  each 
including  such  of  the  causes  of  action  as  might  have  been 
joined;  and  an  action  shall  be  docketed  for  each  of  the  peti- 
tions, and  the  same  shall  be  proceeded  in  without  further 
service.^^ 

See.  108.  Demurrer  to  part  and  answer  to  part.—  The  de- 
fendant may  demur  to  one  or  more  of  the  several  causes  of 
action  stated  in  the  petition  and  answer  as  to  the  residue.'' 
A  defendant  cannot  demur  and   answer  to  the  same  cause 

1  Pepper  v.  Sidwell,  36  O.  S.  454,  •  De  Puy  v.  Strong,  37  N.  Y.  372 ; 
456;  Spence  V.  Ins.  Co.,  40O.  S.  517;  Decker  v.  Decker.  108  N.  Y.  128; 
Vore  V,  Woodford,  29  O.  S.  245.  Weraple  v.  McManus,  15  N.  Y.  S.  86. 

2  Spence  v.  Ins.  Co.,  40  O.  S.  517.  3  Fisher  v.  Hall.  41  N.  Y.  416. 
•Lindeman  v.  Ziegler.  12  W.  L.  B.        »  Jefferson  v.  Elevated  R.  R.  Co..  11 

319 ;  Ins.  Co.   v.  McGookey.  33  O.  S.  N.   Y.   S.    488 ;  People  v.  Murray.  8 

555.     But  see  sec.  1237,  post,  p.  1179.  Hun,  577. 

<Zieverink  v.  Kemper,  19  W.  L.  B.  ">  Remington   v.  Walker,  21  Hun, 

270;  Myers  v.  Croswell,  45  O.  S.  543.  322. 

*Sec.  5064;  Youngstown  v.  Moore,  i'  Code,  sec.  5065.   SeeCloon  v.  City 

«0  O.  S.  133.  Ins.  Co.,  1  H.  32 :  14  Kan.  130. 

6  Masters  v.  Freeman  et  al,  17  O.  S.  i-  O.  Code,  sec.  5066. 
■323. 


108  DEMLKKEK    TO    PETITION.  [§§  109,  110. 

of  action  at  the  same  time.  The  court  will,  in  such  case,  com- 
pel him  to  elect  between  them.^  A  demurrer  cannot  be  joined 
with  a  motion.  It  is  not  good  practice  to  allow  it.^  A  de- 
murrer to  certain  defenses  and  reply  to  others  is  permissible.* 
The  statute  allowing  double  pleading  does  not  extend  to  allow- 
ing a  general  demurrer  and  a  plea  going  to  the  whole  dec- 
laration at  the  same  time.^  Where  there  are  several  defend- 
ants, one  may  demur  and  another  file  an  answer.* 

Sec.  109.  Demurrer  to  reply. —  The  defendant  may  also 
demur  to  the  reply,  or  to  a  separate  traverse,  or  avoidance 
contained  in  the  reply,  of  a  defense  or  counter-claim,  on  the 
ground  that  it  is  insufficient  in  law  on  its  face.^  A  failure  to 
demur  to  the  reply  because  it  does  not  contain  matter  sufficient 
to  avoid  a  defense  set  up  in  the  answer  is  not  a  waiver  of  the 
right  to  object  to  the  sufficiency  of  the  reply,  and  will  not 
affect  the  judgment  to  be  rendered.''  A  demurrer  will  lie  to 
a  reply  that  contains  new  matter  inconsistent  Avith  the  facts 
alleged  in  a  petition.*  Error  in  sustaining  a  demurrer  to  a 
reply  setting  up  new  matter  sufficient  to  avoid  a  defense  is 
ground  for  reversal  of  judgment,  unless  the  record  shows  such 
error  to  have  been  otherwise  waived.^  A  judgment  will  not 
be  reversed  on  error  for  sustaining  a  demurrer  to  a  reply, 
where  plaintiff  files  an  amended  reply,  presenting  the  same 
issues  in  addition  to  others  and  the  case  proceeding  to  trial 
and  judgment  on  the  issues  thus  presented.^** 

Sec.  110.  Form  of  demurrer  to  reply. — 

{^Captio7i.'\ 

The  defendant  demurs  to  the  reply  of  plaintiff  for  the  fol- 
lowing reasons  apparent  on  the  face  thereof,  to  wit : 

1st.  That  the  facts  stated  therein  are  not  sufficient  in  law 
to  constitute  a  defense  to  the  answer  of  the  defendant. 

2d.  Etc. 

1  Davis  V.  Hines,  6  O.  S.  473;  Penn.  »  Allison  Bros.  Co.  v.  Hart,  9  N.  Y- 

&  O.  Can.  Co.  t.   Webb,  9   O.  136 ;  S.  692. 

Stocking  V.  Burnett,  10  O.  137.  6  o.  Code,  sec.  5067. 

-'  Gibson  &  Co.  v.  Ohio  Farina  Co.,  ^  Brown  v.  Kroh,  31  O.  S.  492.    See 

2  Disn.  499;  Laws  v.  Carrier,  2  C.  S.  McWilliams  v.  Same,  27  O.  S.  592. 

C.  R,  80;  4  W.  L.  G.  8i  ;  Wyman  v.  f  Newcomb  &  Co.  v.  "Weber,  1  C.  S. 

Hayes,  1  Clev.  Rep.  178.  C.  R  12,  14. 

3  Stewart  v.  Welch,  41  O.  S.  483,  a  Knox   County  Bank  v.  Lloyd,  18 

491.  O.  S.  3.53. 

*  Craighead  v.   Kemble,  Tapp.  246.  "'Sage  v.  Sleutz,  23  O.  S.  1. 


§  111.]  DEMUEEEE   TO    PETITION.  109 

Sec.  111.  Demurrer  to  answer. —  The  plaintiff  may  demur 
to  a  counter-claim,  set-off  or  defense  consisting  of  new  matter 
contained  in  the  answer  on  the  ground  that  it  is  insufficient 
in  law  on  its  face.^  The  only  ground  specified  under  this  pro- 
vision is  that  the  answer  is  insufficient  in  law  on  its  face. 
The  JS'ew  York  code  is  similar.'-  It  is  there  held  that  if  the 
new  matter  does  not  state  facts  sufficient  to  constitute  a  de- 
fense, it  may  be  subject  to  a  demurrer  for  insufficiency.^  In 
demurring  to  an  answer  it  will  be  sufficient  to  allege  generally 
that  the  answer  is  insufficient  to  enable  the  plaintiff  to  avail 
himself  of  any  questions  affecting  the  merits  of  the  answer.* 
A  o:eneral  demurrer  to  an  answer  containing  several  distinct 
grounds  of  defense  may  be  overruled  if  any  one  of  the  defenses 
is  sufficient  to  bar  the  action.^  And  such  a  demurrer  to  an 
answer  searches  the  record  only  to  the  extent  that  a  general 
demurrer  to  the  petition  would  lie,  and  does  not  reach  de- 
fects available  only  upon  special  demurrer,  such  as  misjoinder 
of  plaintiffs.^  An  answer  to  a  petition  seeking  equitable  re- 
lief is  not  demurrable  for  the  reason  that  it  sets  up  a  partial 
and  not  complete  bar.'  And  so  is  an  answer  denying  all  ma- 
terial allegations  good  on  demurrer.^  An  objection  to  the 
sufficiency  of  the  answer  should  betaken  by  demurrer  when 
it  relates  to  matters  of  substance.'  A  motion  to  strike  out  an 
entire  answer  for  insufficiency  cannot  be  entertained,  as  de- 
murrer is  the  proper  remedy.^^  If  defenses  set  up  in  a  joint 
answer  of  several  defendants  are  not  available  to  all,  a  de- 
murrer will  lie  to  the  answer.'^ 

Where,  in  an  answer  to  a  suit  by  a  widow  for  her  distribu- 
tive share  of  an  estate,  an  answer  is  interposed  that  she  is 

1  O.  Code,  sec.  5068.  Minn.    150;  Seaver  v.    Hodgkin,   63 

2N.  Y.  Code,  sec.  494.  How.  Pr.  128. 

3  Merritt  v.  Millard,  5  Bosw.  645 ;  « Rothweiler  v.  Ryan,  4  O.   C.  C. 

Otis  V.  Shantz,  28  N.  Y.  St  R.  69.  338-40. 

<  Arthur  v.  Brooks,  14  Barb.  533 ;  ^  Peebles  v.  Isanainger,  18  O.  S.  490. 

Hyde  V.  Conrad,  5  How.  112.  8  Lewis  v.  Coulter,  10  O.   S.  451 ; 

5  Mansfield,    Coldwater    &    Lake  Ketcham  v.  Zerega,  1  E.  D.  Smith, 

Michigan  R  R  v.  Hall,  26  O.  S.  310;  553. 

Shroyer  v.  Richmond.  16  O.  S.  455 ;  9  Finch  v.  Finch,  10  O.  S.  501. 

Hale  V.  Omaha  Nat.  Bank,  49  N.  Y.  lo  Goodman  v.  Rohb,  41  Hun,  G05. 

626;    Hyde  v.   Supervisors,   etc.,   43  ^  Tailor  v.  Spaulding,  13  Civ.  Pro. 

Wis.  129 ;  Bruce  v.  Benedict.  31  Ark.  R  12a 
301;   First  Nat.    Bank   v.   How.    28 


110  DEMUKREK   TO   PETITION.  [§§  112-114. 

barred  by  a  post-nuptial  agreement,  such  answer  is  insuflBcient 
on  demurrer,  unless  it  contain  an  averment  that  the  provision 
made  for  her  was  fair,  reasonable  and  equitable.^  A  plaintiff 
cannot,  without  leave  of  court,  dismiss  his  action  without  preju- 
dice after  his  demurrer  to  the  answer  is  overruled.  It  is  a 
final  submission  unless  leave  is  obtained  to  reply  or  amend. ^ 
Sec.  112.  Form  of  demurrer  to  answer. — 

Plaintiff  demurs  to  the  answer  of  the  defendant  upon  the 
following  grounds,  to  wit : 

1st.  That  the  facts  stated  therein  are  insufficient  in  law,  on 
its  face,  to  constitute  a  defense  to  plaintiff's  cause  of  action. 

2d.  Etc. 

Sec.  113.  Demurrer  to  counter-claim. —  The  plaintiff  may 
also  demur  to  a  counter-claim  or  set-off  upon  which  the  de- 
fendant demands  an  affirmative  judgment,  when  it  appears 
on  its  face,  either  —  1.  That  the  court  has  no  jurisdiction  of 
the  subject  thereof.  2.  That  the  defendant  has  not  legal  ca- 
pacity to  recover  on  the  same.  3.  That  there  is  anothei 
action  pending  between  the  same  parties  for  the  same  cause. 
4.  That  the  counter-claim  is  not  of  the  character  specified  in 
section  5072.  5.  That  the  counter-claim  or  set-off  does  not 
state  facts  sufficient  to  entitle  the  defendant  to  the  relief  de- 
manded.' 

This  provision  can  be  resorted  to  only  where  a  defendant 
asks  an  affirmative  judgment,  so  that  he  becomes  practically 
a  plaintiff.  It  does  not  apply  when  the  counter-claim  set  up 
merely  extinguishes  the  plaintiff's  cause  of  action.* 

Sec.  114.  When  demurrer  will  lie  —  Some  general  rules. 
A  demurrer  will  lie  on  the  ground  of  triviality  of  cause,'  to 
a  part  of  a  claim,"  or  an  answer,^  or  to  an  indictment  or  infor- 
mation,® or  to  variance  on  profert,^  to  lapse  of  time  appearing 
on  the  face  of  the  pleading,^"  to  misjoinder  of  defendants,"  for 

1  Miller  v.  Miller,  16  O.  S.  527.  »  Kemp  v.  McGuigin,  Tapp.  18. 

2  Beaumont  V.  Herrick,  24  O.  S.  445.  ^o  "Williams  v.  Presbyterian,  etc.,  1 

3  0.  Code,  sec.  5069.  O.  S.  478;  9  W.  L  J.  303;  Hill  v. 
*  Otis  V.  Shantz,  38  N.  Y.  St  R  434  Henry.  17  O.  S.  11 ;  Sturges  v.  Bur- 
8  Carr  v.  Inglehart.  3  O.  S.  457.  ton,  8  O.  S.  215 ;  Commissioners,  etc. 
SHiggms  V.  Pelton,  4  W.  L.  B.  751.  v.  Andrews,  18  O.  S.  49. 

'Everett  et  aL  v.  Waymire  et  al.,  'iFoote  v.  City  of  Cincinnati,  9  O. 
80  O.  S.  308.  81 ;  Milius  v.  Marsh,  1  D.  512. 

8  State  V.  Brower,  30  O.  S.  101 ;  Da- 
vis V,  State,  32  O.  S.  24. 


i 


I 


§§  115,  116.]  DEMURRER   TO   PETITION.  Ill 

misjoinder  of  husband  and  wife,'  for  misjoinder  of  causes  of 
action,/  to  an  action  brought  in  a  firm  name  where  it  is  not 
alleged  that  they  are  doing  business  in  the  state.^ 

Sec.  115.  When  demurrer  will  not  lie  —  Oeneral  rules. — 
A  demurrer  will  not  lie  for  want  of  parties/  nor  for  omission 
to  attach  copy  of  instrument,^  nor  to  bill  of  particulars  before 
a  justice  of  the  peace,®  nor  to  matter  of  form,^  nor  for  defective 
process  or  service,^  nor  for  indefiniteness,^  nor  to  a  negative 
pregnant,'**  nor  to  the  title  of  a  suit  wrongfully  stated,"  nor  to 
a  part  of  a  cause,'-  nor  for  duplicity  or  redundancy,'^  nor 
because  a  petition  asks  relief  that  cannot  be  granted,'*  nor 
to  make  a  petition  definite  and  certain,''  for  misnomer,'* 
for  argumentativeness  or  surplusage,'^  for  irrelevant  matter 
merely,'^  nor  because  the  allegations  are  hypothetical,'*  nor  for 
want  of  verity  in  the  allegations,-"  nor  for  statements  of  mat- 
ters of  belief,^'  nor  where  different  grounds  of  defense  are  im- 
properly intermingled  in  one  statement,^  nor  because  of  incon- 
sistent statements.^* 

Sec.  116.  Miscellaneous  general  rules. —  On  demurrer 
judgment  is  always  given  against  the  party  that  commits  the 
first  fault  in  pleading.-*  Where  a  demurrer  to  an  indictment 
is  sustained,  and  the  defendant  discharged  by  the  court  of 

1  Bartges  V.  O'Neil,  13  O.  S.  73.  "Blackwell     v.     Montgomery,     1 

2  Corbin  v.  Bouve,  1  C.  S.  C.  R  259;    Handy,  40 ;  Cunningham  v.  Phillips, 
Nimocks  v.  Inks,  17  O.  596.  T.  152. 

3Haskins  v.  Aicott,  13  0.  S.  210;  izgniith  v.  Wyatt,  2  C.  S.  C.  R  12. 
Brownson  v.  Metcalf,  1  H.  188.  "Cannon  v.  Lindsay,  85  Ala.  198. 

<  Trustees,  etc.  V.  McCaughy,  20.  S.       l^Townsend  v.  Bogert,  126  N.  Y. 

153.  870. 

»  Calvin  v.  State,  12  O.  S.  60.  is  Everett  v.  Waymire,  30  O.  S.  308. 

•Bruder  v.  Biehl,  1  O.  C.  C.  85.  le  Slocomb  v.  McBride,  17  O.  607. 

^  Trustees,  etc.  v.  Robinson,  W.  436 ;       "  13  Abb.  Pr.  334. 
Lyon  V.  Finch,  20  O.  100;  Wood  v.       is  Watson  v.  Husson,  1  Duer,  3431 
Funk,  7  O.  (pt.  1),  196;  Burns  v.  Pat-       is  Taylor  v.  Richards,  9  Bosw.  679. 
terson  et  al.,  3  H.  270.  -^  McGregor  v.  McGregor,  21  Iowa, 

8  58Ga99.  441. 

9  Railway  Co.  v.  Iron  Co.,  46  O.  S.  21  Stoutenburg  v.  Lybrand,  18  O.  S. 
44;  Trustees,   etc.   v.  Odlin,  8  O.  S.  228. 

293;  Lewis  v.  Coulter,  10  O.  S.  451 ;       22  Akerly  v.  Vilas,  25  Wis.  703. 
Union  Bank,  etc.  v.  Bell,  14  O.  S.       -^  Larimer  v.  Kelley,  10  Kan.  298. 
20a  24Trott  V.  Sarchett,  10  O.  S.  241; 

"Lawrence  v.  Cooley,  1  Clev.  Rep.  Headington  v.  Neff,  7  0.  (pt  1),  239. 
17a 


112 


DEMUKREE   TO    PETITION. 


[§  116. 


common  pleas,  the  circuit  court,  under  section  7356  of  the  Re- 
vised Statutes  of  Ohio,  has  no  jurisdiction  on  a  petition  in  error 
filed  in  behalf  of  the  state  to  review  the  action  of  the  court 
of  common  pleas  in  sustaining  the  demurrer.^  A  judgment 
will  not  be  reversed  for  error  in  sustaining  a  demurrer  to  a 
defense,  where  the  defendant  does  not  stand  upon  such  de- 
fense, but  so  amends  his  answer  that  upon  the  trial  he  has  the 
benefit  of  all  the  averments  of  the  original  defense.-  A  de- 
murrer to  a  reply  reaches  the  cross-petition.'  Where  a  de- 
murrer is  filed  to  an  entire  defense  it  is  error  to  sustain  it  as 
to  part  and  strike  out  the  remainder.* 

The  rule  that  the  demurrer  reaches  the  first  defective  plead- 
ing is  subject  to  the  qualification  that  it  is  only  an  objection 
to  the  jurisdiction,  or  that  the  petition  does  not  state  facts 
sufficient  to  constitute  a  cause  of  action,  that  searches  the  rec- 
ord upon  a  demurrer  to  an  answer.'  A  defect  in  the  conclu- 
sion of  a  plea  cannot  be  reached  by  general  demurrer.^  Error 
in  sustaining  a  demurrer  is  waived  by  setting  up  the  same 
matter  in  the  answer  or  reply.^  A  ruling  on  a  demurrer  is 
vacated  by  an  appeal  of  a  cause,*  and  a  demurrer  waives  the 
right  to  file  a  motion.^  A  wife  may  demur  even  though  her 
husband  has  filed  an  answer.'*^  Joinder  on  demurrer  is  not 
necessary 


11 


1  State  V.  Simmons,  49  0.  S.  305. 

2  Kitchen  v.  Lauderback,  48  O.  S. 
177. 

3  Hillier  et  al.  v.  Stewart  et  al,  26 
O.  S.  652. 

*  Armstrong  v.  Hinds,  9  Minn.  356. 
sstratton  v.  Allen,  7  Minn.  502; 
Eaton  V.  North,  25  Wis.  514. 


6  Lyon  V.  Fish,  20  O.  100. 
T  Davis  &  Co.  V.  Gray,  17  0.  S.  330 ; 
Sage  V.  Sleutz,  23  O.  S.  1. 

8  Wanzer  v.  Self,  30  O.  S.  378 ;  Rust 
V.  Rustet.al.,  29  0.  S.  440. 

9  Wyman  v.  Hayes,  1  Clev.  Rep.  178. 
10  Graf  V.  Wirthvvein,  1  Handy,  19. 
"1  McCracken  v.  West,  17  O.  16. 


CHAPTER  9. 


MOTIONS. 


Sec.  117.  Remedy  for  formal  defects. 

118.  Motion  as  to  jurisdiction. 

119.  Motion  to  quash  summons 

and    dismiss    action    for 
want  of  jurisdiction. 

120.  Motion  should  specifically 

point  out 


Sec.  121 
132 


To  strike  out 

To  strike  from  files. 

123.  To  make  definite  and  cer- 

tain. 

124.  Other  motions. 

125.  Notice  of  motion. 


Sec.  117.  Remedy  for  formal  defects.—  Under  the  code 
all  matters  of  form  are  remedied  upon  motion/  which  is  an 
application  addressed  to  a  court  for  an  order  with  respect 
thereto.-  This  is  a  departure  from  the  common  law,  as  the 
remedy  there  pursued  was  a  special  demurrer.  Several  ob- 
jects may  be  included  in  the  same  motion  if  they  all  grow- 
out  of  or  are  connected  with  the  action  or  proceeding  in  which 
it  is  made.^  It  is  said  that  when  a  motion  is  filed  to  a  petition 
the  defendant  will  not  be  in  default,  although  he  has  failed  to 
file  a  demurrer  or  answer  until  the  motion  is  disposed  of.* 
This  is  the  universal  practice;  but  where  a  motion  is  without 
merit  and  made  for  delay  the  court  would  be  justified  in  ren- 
dering judgment  by  default.-^  Otherwise,  where  a  motion  is 
made  in  good  faith,  it  would  be  a  hardship  upon  a  defendant 
to  declare  him  in  default  when  he  has  a  motion  pending.  He 
may  be  unable  to  plead  until  the  same  is  disposed  of. 

Sec.  118.  Motion  asto  jurisdiction.— Amotion  may  prop- 
erly be  made  by  a  defendant  for  the  purpose  only  of  ques- 
tioning the  jurisdiction  of  the  court,  without  submitting  him- 
self thereto,  and  when  based  only  upon  that  ground  it  does 
not  amount  to  an  appearance  or  waiver.  But  if  based  on  an 
irregularity  it  amounts  to  an  appearance  by  the  party  and  a 


'  Grannis  v.  Hooker,  29  Wis.  65. 
2  O.  Code,  sec.  5121 ;  Callender  v. 
Railroad  Co..  11  O.  S.  520. 
'  n.  Code.  sec.  5122. 


4  IMaxwell  on  PIdg..  p.  362. 

5  Kellogg  V.  Churchill,  1  W.  L.  M, 


45. 


114  MOTIONS.  [§§  119-121. 

waiver  of  the  question  of  jurisdiction.*  A  motion  made  to 
dismiss  an  action  for  the  reason  that  the  court  has  no  juris- 
diction has  been  held  to  be  a  waiver  of  defective  service  and 
a  voluntary  appearance.^  And  so  with  a  motion  to  quash 
summons  and  return  for  improper  service.^  That  a  person 
may  not  submit  himself  to  the  jurisdiction  of  a  court,  he  must 
appear  for  the  sole  purpose  of  objecting  to  jurisdiction.  It  is 
not  then  a  waiver  of  any  defect  in  the  manner  of  obtaining 
the  same.*  If,  however,  the  motion  involves  the  merits  of  the 
case  made,  the  rule  is  otherwise.' 

Sec.  119.  Motion  to  quash  summons  and  dismiss  action 
for  want  of  jurisdiction. — 

Now  comes  the  defendant  C.  E.,  not  intending  in  any  manner 
to  enter  his  appearance  herein,  but  for  the  sole  purpose  of 
protesting  and  objecting  to  the  jurisdiction  of  this  court  over 
this  defendant,  therefore  moves  the  court  to  quash  the  sum- 
mons issued  herein  and  to  dismiss  the  action  against  this  de- 
fendant for  want  of  jurisdiction. 

Sec.  120.  Motion  should  specifically  point  out. —  It  is  the 
duty  of  a  party  who  asks  relief  by  motion  to  specifically  point 
out  what  he  desires.**  It  should  indicate  the  part  to  which 
objection  is  made  in  such  a  manner  that  it  may  be  ascertained.' 
A  motion  to  make  definite  and  certain  should  point  out  the 
alleged  defects.^ 

Sec.  121.  To  strike  out. —  Eedundant,  irrelevant  or  scur- 
rilous matter  inserted  in  a  pleading  may  be  stricken  out  on 
motion  of  the  party  prejudiced  thereby;  and  so  with  obscene 
words,  which  may  be  stricken  out  by  the  court  of  its  own 
motion.*  Kedundancy  consists  of  repetition,  and  irrelevancy 
has  reference  to  matter  which  has  no  bearing  upon  the  issues 
made.     A  plain  and  concise  statement  does  not  contemplate 

I  Maholm  v.  Marshall,  29  O.  S.  611 ;  "^  Walker  v,  Morse,  33  Neb.  650. 

Mardsden  v.  Soper,  11  O.  S.  505-6.  'Jackson  v.  Bowles,  67  Mo.   609; 

^Elliott  V.  Lawhead,  43  O.  S.  171 ;  O'Connor  v.  Koch,  56  Mo.  253. 

Handy  v.  Insurance  Co.,  37  O.  S.  366.  ^  Fischer  v.  Coons,  26  Neb.  400 ;  42 

3  Railway  Co.  v.  McLean,  1  O.  C.  C.  N.  W.  Rep.  417  (1889) :  Kerr  v.  Reece, 

112.  27  Kan.  338. 

^  Smith   T.  Hoover,  -39   O.    S.  249;  »0.  Code,  sec.  5087;    N.  Y.  Code, 

Elliott  V.  Lawhead,  43  O.  S.  171.  sec.  545.     See  Reichel  v.  Magrath,  L. 

'"  Handy  v.  Insurance  Co.,  supra;  R.  14  App.  Cas.  665 
Maholm  v.  Marshall,  29  O.  S.  611. 


§  121.]  MOTIONS.  115 

a  long  and  prolix  history  of  the  cause  of  action.^  If  there  is 
a  semblance  of  a  cause  of  action  set  forth  in  the  petition,  its 
sufficiency  cannot  be  determined  upon  a  motion  to  strike  out ; ' 
nor  will  suck  a  motion  be  entertained  after  an  answer  or  de- 
murrer iiled.3  When  a  pleader  becomes  prolix  and  states 
more  than  is  essential  to  his  action,  it  becomes  surplusage 
and  falls  under  the  head  of  irrelevant  matter,  and  may  prop- 
erly be  stricken  out,-*  or  it  may  be  disregarded  by  the  court.* 
A  motion  to  strike  out  is  addressed  to  the  discretion  of  the 
court,  and  error  cannot  be  predicated  thereon  unless  some  sub- 
stantial right  has  been  jeopardized.^  This  discretion,  however, 
should  usually  be  confined  to  cases  where  the  mover  will  be 
prejudiced  by  the  matter  complained  of.^  Among  those  mat- 
ters which  may  be  properly  stricken  out  upon  motion  falling 
within  the  provision  of  the  code  under  consideration  are 
evidential  facts «  or  arguments.^  A  motion  to  strike  out  certain 
allegations  of  fact  stated  by  way  of  justification  and  mitiga- 
tion, in  an  action  for  libel,  cannot  be  entertained,  as  both 
may  be  set  up  at  the  same  time.^"  'Nor  can  an  entire  answer 
be  stricken  out  as  redundant,"  or  specified  defenses  for  uncer- 
tainty.^2  ^Vhere  one  defense  in  an  answer  contains  a  general 
denial,  a  like  denial  embraced  in  other  defenses  may  bef  stricken 
out.'3  A  motion  to  strike  out  a  reply  on  the  ground  of  de- 
parture, and  a  demurrer  to  it  at  the  same  time  upon  the  same 
ground,  is  not  proper;  the  motion  may  be  stricken  from  the 
files.'^  And  v/here  new  matter  in  an  amendment  is  intended 
as  another  or  different  cause  of  action  against  one  defendant 
only,  but  is  not  sufficient  to  constitute  a  cause  of  action,  it 

iMcGlothlin   v.    Hemery,   44   Mo.  8  Railroad   Co.  v.    Bristol,   26   Atl. 

350.  Rep.    122  (Conn.,   1893);    Bowen  v. 

2Walterv.  Fowler,  85  N.  Y.  621.  Aubrey,   22    Cal.   566;     Wooden    v. 

3  Best  V.  Clyde.  86  N,  C.  4;  Russell  Strew,  10  How.  Pr.  48. 

V.  Chambers.  31  Minn.  54.  9  Gould  v.  Williams,  9  How.  Pr.  51. 

*  Petty  V.  Trustees,  95  Ind.  280.  lo  Van   Ingen   v.  Newton,    1   Disn. 

5  Ashe  V.  Gray,  90  N.  C.  137.  458. 

6  Cogswell  V.  State,  65  Ind.  1;  Gate  "  Fasnacht  v.  Stehn,  53  Barb.  650. 
V.  Gilman,  41  Iowa,  530;    Potree  v.  ^-'Smead  v.  Chrisfield,  1  Disn.  17. 
Brotherton,   133  Ind.  692 :    32  N.  E.  "  Campen  v.  Murray,  3  O.  C.  C.  93. 
Tiep.  300.  See  Boone's  Pldg.,  sec.  250,  note  11. 

1  Boone's  Pldg.,  sec.  249,  note  13,  "  Laws  v.  Carrier,  2  C.  S.  C.  R.  80. 


116  MOTIONS.  [§  122. 

may  be  stricken  out.^  A  court  may  in  its  discretion  order  the 
plaintiff  to  so  amend  his  petition  as  to  strike  out  irrelevant 
and  redundant  allegations.'  And  a  frivolous  answer,  de- 
murrer or  reply  may  be  stricken  out  upon  motion.^  A  form 
of  a  motion  of  this  character  is  xery  simple  and  may  be  as 
follows:  Defendant  now  comes  and  moves  the  court  to  strike 
out  of  the  petition  as  redundant  and  irrelevant,  the  following, 
to  wit. 

Sec.  122.  To  strike  from  files. —  There  are  instances  in 
which  courts  have  power  to  strike  pleadings  from  the  files 
upon  motion,  but  such  a  motion  cannot  be  made  to  subserve 
the  purposes  of  a  general  demurrer.*  It  is  most  commonly 
employed  in  case  of  sham  pleadings,  which  are  those  good 
in  form  but  false  in  fact,  and  are  not  permitted  under  the 
code,  the  court  having  inherent  power  to  strike  them  from 
the  files.^  For  example,  a  general  denial  which  is  false  in  fact 
may  be  stricken  off  as  sham,  and  the  court  may  hear  evidence 
and  determine  whether  it  was  filed  in  good  faith  or  is  false  in 
fact."  On  the  contrary  it  has  been  held  that  the  pleading 
should  prima  facie  show  no  defense  or  falsity ; '  and  that  a 
pleading  cannot  be  declared  frivolous  where  it  requires  argu- 
ment so  to  do,^  and  that  this  cannot  be  done  where  it  is  veri- 
fied or  supported  by  aindavit.'  The  right  to  object  to  the 
overruling  of  a  motion  to  strike  a  pleading  from  the  files  is 
w^aived  by  pleading  over.^'^  A  motion  cannot  be  made  to  strike 
a  pleading  from  the  files  for  any  reason  which  affects  the  sub- 
stance, but  only  upon  the  ground  of  some  irregularity  or  forni.^' 
A  pleading  not  filed  within  the  prescribed  time  may  be  stricken 
from  the  files.^^ 

1  Hawkins  v.  Furnace  Co..  40  O.  S.        ^  Upton  v.  Kennedy,  36  Neb.  66 ;  53 
507,  N.  W.  Rep.  1042 ;  Cottrill  v,  Cramer, 

2  Drake  v.  Bank,  33  Kan.  635.  40  Wis.  559. 

3  Bliss  on  Code  Pldg..  sec.  421.  8  Barney  v.  King,  13  N.  Y.  S.  685. 
*  Robinson  v.  Fitch,  26  O.  S.  659-62 ;        ^  Bryant's  Pldg.,  p.  200. 

Ellis  V.  Reddin,   12  Kan.   306,     See       i"  Shugart  v.  Pattee,  37  Iowa,  422. 
chapter  on  Demurrer,  sec.  109.  •'  Finch  v.  Finch.  10  O.  S.  501. 

5  Upton   V.  Kennedy,  36  Neb.  66;       i- Acock  v.  Halsey,  90  Ca'.  Slf,;  37 
Wayland  v,  Tyson,  45  N.  Y.  281.  Pac.  Rep,  193  (1891> 

6  Wertheimer  v.  Morse,  23  W.  L.  B. 
453. 


Ill 


§  123.]  MOTIONS.  117 

Sec.  1'2S.  To  malvo  definite  and  certain.—  When  the  alle- 
gations of  a  pleading  are  so  indefinite  and  uncertain  that  the 
precise  nature  of  the  charge  or  defense  is  not  apparent,  the 
court  may  require  the  pleading  to  be  made  definite  and  cer- 
tain by  amendment.^  The  remedy  for  uncertainty  and  in- 
definiteness  is  by  motion  and  not  demurrer;-  so  that  where 
the  language  of  a  pleading  will  fairly  admit  of  a  construction 
that  will  sustain  it  against  a  demurrer,  it  should,  in  the  ab- 
sence of  amotion  to  make  definite  and  certain,  be  so  construed.^ 
Questions  of  the  sufficiency  of  the  averments  in  a  pleading 
can  only  be  raised  by  motion  to  make  definite  and  certain  or 
to  strike  out.^  Such  a  motion  may  reach  a  want  of  cer- 
tainty as  to  time,-5  ambiguity  caused  by  alternative  averments,^ 
or  an  allegation  that  an  appraisement  was  not  legally  and 
duly  made,"  or  an  allegation  as  to  the  title  of  a  note  sued 
upon,^  or  the  sufficiency  of  a  reply.^  And  while  an  allegation 
or  denial  of  ownership  is  not  a  mere  conclusion  of  law,  yet  as 
a  statement  of  facts  it  may  be  indefinite  and  subject  to  mo- 
tion.'" It  must  be  clear  to  the  court,  however,  that  the  plead- 
ing is  uncertain  before  sustaining  such  a  motion, '^  and  the 
question  cannot  be  raised  for  the  first  time  on  appeal. '^  Where 
two  causes  of  action  are  set  up,  but  not  separately  stated  and 
numbered,  a  motion  may  be  made  to  reach  this  irregularity.'^ 
But  it  is  entirely  discretionary  with  the  court  as  to  whether 
the  two  causes  shall  be  so  separately  stated  and  numbered, 
and  its  refusal  to  so  order  is  not  reviewable.'^  While  it  is 
competent  for  a  party  to  move  to  make  a  pleading  of  his  ad- 
versary definite  and  certain,  yet  inasmuch  as  it  is  the  primary 
duty  of  the  party  pleading  to  present  a  clear  and  unequivocal 

10.  Code,  sec.  5088,  ^  Jamison  v.  King.  oO  Cal.  133. 

-  Railway  Co.  v.  Iron  Co.,  46  O.  S.  'Trustees  v.  Odlin.  8  O.  S.  293. 

44 ;  Lorrillard  v.  Clyde,  86  N.  Y.  384 ;  ^  Schrock  v.  Cleveland,  29  O.  S.  499. 

Roe  V.   Lincoln    Co.,   56    Wis.    66;  nVhelan  v.  Kinssley.  26  O.  S.  131. 

Trustees  v.  Odlin,  8  O.  S.  293;  Lewis  J"Stoutenburg  v.  Lybrand.  13  O.  S. 

V.  Coulter,  10  O.  S.  451 :  Bank  v.  Mas-  228. 

sillon,  14  O.  S.  208 :  44  O.  S.  55.  ^i  People  v.  Tweed,  63  N.  Y.  201. 

s  Railway  Co.  v.  Iron  Co.,  supra.  J2  0sborn  v.  Graves,  11  Ora  526. 

^Pelton  V.  Bemis,  44  O.  S.  55,  and  ^^gee  ante,  sec.    20;   Township   v. 

cases  cited.  Bennett,  10  O,  S.  441. 

« Railroad  Co.  v.  Shanklin,  94  Ind.  i*  People  v.  Tweed,  63  N.  Y.  194. 
297, 


118  MOTIONS.  [§§  124,  125. 

statement  of  his  allegations,  the  onus  of  having  them  so  made 
cannot  be  cast  upon  his  adversary  by  his  own  fault  in  failing 
to  perform  his  duty.^  The  form  of  the  motion  may  be :  Now 
comes  the  defendant  and  moves  the  court  for  an  order  requir- 
ing the  plaintiff  to  make  his  petition  definite  and  certain,  in 
this,  to  wit  —  stating  the  grounds  with  particularity. 

Sec.  124:.  Other  motions. —  A  defendant  may  at  any  time 
before  the  commencement  of  the  trial  file  a  motion  to  require 
a  non-resident  of  the  county  in  which  the  action  is  brought 
to  give  security  for  costs.^ 

Sec.  125.  Notice  of  motion. —  Notices  of  motions  are  usu- 
ally regulated  by  rules  of  court.  When  required,  it  must  be 
in  writing,  and  contain  the  names  of  the  parties  or  proceed- 
ing in  which  it  is  made,  the  name  of  the  court  or  judge  be- 
fore whom  it  is  to  be  made,  the  place  where  and  the  day  and 
hour  on  which  it  will  be  heard,  the  nature  and  terms  of  the 
order  to  be  applied  for,  and  must  be  served  a  reasonable 
length  of  time  before  the  hearing.'  Parties  are  bound  to  take 
notice  of  all  motions  made  in  court  and  during  the  pendency 
of  an  action  in  the  manner  pointed  out  by  the  rules.*  Mo- 
tions to  strike  pleadings  and  papers  from  the  files  may  be 
made  with  or  without  notice,  as  the  court  or  judge  shall  di- 
rect.* 

'  Clark  V.  Dillon,  97  N.  Y.  374.  As  to  service  of  motions,  see  0.  Code, 

2  O.  Code,  sees.  5340-43,  5344  sees.  5124,  5125. 

3  O.  Code,  sec.  5123.  *  O.  Code,  sec.  5128, 

4  Garner  v.  Cline.  2  W.  L.  M.  829. 


I 


I 


CHAPTER  10. 


AMENDMENTS,   SUPPLEMENTAL   PLEADINGS  AND  CONSOLIDA- 
TION OF  ACTIONS. 


Sec.  131.  Amendment  relates  back. 
133.  Amendment  liow  made. 

133.  Supplemental  pleadings. 

134.  Same  continued  —  Supple- 

mental petition. 

135.  Same  continued  — Supple- 

mental answer. 

136.  Immaterial  errors. 

137.  Consolidation  of  actions. 


Sec.  126.  Amendment    of   pleadings 
generally. 

127.  Amendment   changing  ac- 

tion not  allowed. 

128.  Amendments  —  What   and 

when  made. 

129.  Same — After  demurrer  sus- 

tained. 

130.  Continuance  after  amend- 

ment. 

Sec.  126.  Amendment  of  pleadings  generally.—  The  law 

has  always  been  fayorable  to  amendments  of  pleadings.  Even 
when  made  orally  the  pleader  was  not  held  to  the  form  of 
statement  first  made,  and  so  the  idea  descends  to  us  under 
the  code.  It  has  been  considered  that  the  code  confers  al- 
most unlimited  power  upon  the  court  to  permit  amendment 
of  pleadings  in  furtherance  of  justice/  but  the  time  when  they 
may  be  made  is  regulated  by  statute.'-  Amendments  are  ])er- 
mitted  upon  the  theory  that  it  is  better  to  preserve  .and  im- 
prove what  has  already  been  done  than  cast  it  aside.  Impor- 
tant defects  should  be  corrected  as  well  as  unimportant ;  those 
of  substance  as  well  as  ot  form."  Amendments  may  be  made 
at  the  times  prescribed  by  the  code  without  leave.  But  at 
any  other  time  an  application  for  leave  so  to  do  must  be 
made,^  and  it  rests  largely  in  the  discretion  of  the  court.  ^ 
And  pleadings  filed  out  of  time  without  leave  or  consent  of 
court  will  be  disregarded.*^     A  pleading  which  does  not  con- 


1  Dresslei  v.  Davis,  12  Wis.  58 ; 
Deck  V.  Smith,  12  Neb.  393. 

'''  See  sec.  128,  j^ost. 

» Ellison  V.  Railroad  Co.,  87  Ga.  691. 

•«Tull03  V.  Lane,  12  S.  Rep.  508 
(La.,  1893). 

5  Stith  V.  Fullenwider,  40  Kan.  73 ; 


Burtis  V.  Wait,  33  Kan.  482 ;  Clark 
V.  Clark,  20  O.  S.  128 ;  Bruck  v.  Bate- 
man,  25  O.  S.  009 ;  New  burg  Pet.  Co. 
V.  Weare,  44  O.  S.  610 ;  Ellison  v. 
Railroad  Co.,  supra. 
«  Hopkins  v.  Cothran.  17  Kan.  173, 


120  AMENDMENTS,  ETC.  [§  127. 

tain  a  substantial  cause  of  action  is  held  not  amendable  in 
form ;  ^  nor  should  an  amended  petition  which  states  no  cause 
of  action  be  allowed  to  be  filed,-  and  it  will  be  disregarded  or 
stricken  out  as  irrelevant.^  Amendments  must  not  be  made 
for  delay  but  in  good  faith.* 

Sec.  127.  Amendment  cliaiiging  action  not  allowed. —  It 
has  been  frequently  asserted  by  the  courts  that  an  amendment 
cannot  be  permitted  when  a  new  or  different  cause  of  action 
is  introduced ;  ^  and  this  is  the  provision  of  the  code,  that  is, 
the  amendment  must  not  substantially  change  the  claim  or 
defense.®  It  does  not  refer  to  the  form  of  the  remedy,  but 
only  to  the  claim  or  defense."  A  cause  of  action  which  has  ac- 
crued since  the  commencement  of  the  action  cannot  be  brought 
in,^  This  must  be  by  supplemental  petition.^  An  action  upon 
a  contract  cannot  be  changed  to  one  in  tort,^"  or  from  tort  to 
contract."  Or  an  action  on  a  fire  insurance  policy  cannot  be 
amended  so  as  to  make  it  an  action  upon  a  parol  contract 
made  after  the  issuance  of  the  policy.^-  A  new  cause  of  action, 
however,  is  not  added  where  the  amendment  merely  adds  a 
specification  of  further  allegations  of  negligence  and  unskil- 
fulness  against  a  defendant.^^  And  so  with  an  amendment 
showing  that  an  injury  occurred  in  a  different  manner  from 
that  alleged  in  the  original  petition.^*  Or  an  action  for  dam- 
ages resulting  from  the  purchase  of  a  horse  may  be  amended 
to  show  an  express  warranty.'^  And  where  an  action  has  been 
brought  upon  an  account  the  petition  may  be  amended  so  as 
to  bring  in  a  note  given  in  settlement  thereof.'^     The  rule  for- 

'  Ellison  V.  Railroad  Co.,  supra.  9  See  sec.  133.  j^ost 

2Rippe    T.    Stogdill,   61    Wis.   38;  lOLink  v.  Jar  vis,  33  Pac.  Rep.  206 

Hawkins  v.   Furnace    Co.,  40  O.  S.  (Cal.,  1893). 

507.  "Cox  V.  Railroad  Co.,  87  Ga.  747; 

2  Hawkins  v.  Furnace  Co.,  supra.  Carmichael  v.  Argard,  53  Wis.  607. 

4  Ostrander  T.  Conkey,  20  Hun.  J21.  ^-  Hill  v.  Assurance  Corp.,  26  Abb. 

5  Shields  v.  Moore,  2  W.  L.  M.  437 ;  N.  C.  203. 

Freeman   v.    Grant.    132   N.    Y.    22;  13  Ehlein  v.  Brayton.  21  N.  Y.  S.  825. 

Smead  v.  Chrisfield,  1  Handy,  573 ;  i^  Smith  v.  Bogenschutz,  19  S.  W. 

Hollister  v.  Livingston,  9  How.  Pr,  Rep.  667  (Ky.,  1892). 

140;  Reeder  v.  Sayre,  70  N.  Y.  181.  i^Culp  v.  Steere,  47  Kan.  746, 

6  0.  Code,  sec.  5114.  J6Roe  v.  Holbert  18  S.  W,  Rep.  417 

7  Poor  V.  Scanlan,  7  W.  L.  B.  15.  (Tex.,  1892).     But  see  ch.  12,  see.  — . 
t*  Randall  v.  Christiansen,  51  N.  W. 

Kep.  253  (Iowa,  1892). 


§  128,]  AMENDMENTS,  ETC.  121 

raerly  was  that  amendments  were  not  permitted  where  the 
purpose  was  to  set  up  defenses  which  were  termed  uncon- 
scionable though  legal,  as  usury,  statute  of  limitations,  or  the 
like.^  But  this  has  been  departed  from  somewhat  and  amend- 
ments are  permitted  without  regard  to  the  nature  of  the  de- 
fense.- It  is  perfectly  clear  that  a  party  may,  so  long  as  he  is 
permitted  to  amend  as  of  right,  set  up  any  kind  of  a  defense; 
but,  as  suggested  by  Mr.  Bliss,  when  it  becomes  discretionary 
with  the  court,  it  should  be  controlled  by  equitable  considera- 
tions,^ and  an  unconscientious  defense  is  not  favored  inequity.* 
This  may  be  correct  in  theory,  but  amendments  are  seldom 
refused  in  practice,  and  the  rule  adopted  in  the  ]S"ew  York 
cases  is  that  most  generally  followed.  In  an  action  for  slander 
where  the  petition  charges  the  words  to  have  been  spoken 
against  the  plaintiff  individually,  an  amendment  may  be  made 
by  showing  that  they  were  spoken  of  him  in  hi?  business.^ 
It  may  easily  be  determined  whether  the  same  evidence  will 
support  the  original  and  amended  petition,^  and  if  not,  then 
the  pleading  cannot  be  considered  an  amendment.'  An  ac- 
tion for  money  had  and  received  cannot  be  changed  to  one  for 
conversion,^  nor  specific  performance  substituted  for  damages.* 
But  a  petition  for  false  imprisonment  may  be  changed  to  one 
for  malicious  prosecution,^"  and  malicious  prosecution  to  false 
imprisonment."  A  new  and  different  cause  of  action  cannot 
be  set  up  in  an  action  on  appeal. ^- 

Sec.  128.  Amendments  —  ^Vhat  and  when  made. —  The 
])laintiff  may  amend  his  petition  without  leave,  at  any  time  be- 
fore the  answer  is  filed,  without  prejudice  to  the  proceeding ;  but 
notice  of  such  amendment  shall  be  served  upon  the  defendant 

1  Bliss  on  Code  Pldg..  sec.  4ol.  ^  Bliss  on  Code  Pldg.,  sec.  431. 

2  McQueen  v.  Babcock,  23  How.  Pr.  *  Treasurer  v.  Martin,  50  O.  S.  197. 
239.     Usury  may  be  set  up.    Barnett  ^  Shields  v.  Moore.  3  W.  L.  M.  437. 
V.  Meyer,  10  Hun,   109.     It  is  held  « Scovill   v.  Glasner,  79  Mo.   449; 
to   be    discretionary  in    "Wisconsin.  Lumpkin  v.  Collier,  69  Mo.  170. 
Plumer  v.  Clark,  59  Wis.  646 :  Smith  '  Scovill  v.  Glasner,  79  Mo.  449. 

V.  Dragert,  61  Wis.  333.  In  Treasurer        *  Kotch  v.  Sieplein,  1  Clev.  Rep.  17. 
V,  Martin,  50  O.  S.  197,  the  court  say        ^  Evens  v.  Hall,  1  Handy,  434. 
that  the  statute  of  limitations  is  a       i"  Johnson  v.  Corrington,  3  W.  L.  B. 

meritorious  defense,  but  where  an  1139. 

unfair  advantage  has  been  taken  so       ^'  Spice  v.  Steinruck.  14  O.  S.  213. 
that  it  becomes  an  unconscionable       12  Grant  v.  Ludlow,  8  O.  S.  33;  Wil- 

defense  it  should  not  be  allowed.  son  v.  Wilson,  30  O.  S.  365. 


122  AMENDMENTS,  ETC.  [§  128. 

or  his  attorney;  and  the  defendant  shall  have  the  same  time 
to  answer  or  demur  thereto  as  to  the  original  petition.^  And 
at  any  time  within  ten  days  after  a  demurrer  is  filed,  the  ad- 
verse party  may  amend,  without  leave,  on  payment  of  costs 
since  the  filing  of  the  defective  pleading;  and  notice  of  filing 
an. amended  pleading  must  be  forthwith  served  upon  the  other 
party,  who  shall  have  the  same  time  thereafter  to  answer,  or 
reply  thereto,  as  to  an  original  pleading.-  When  a  demurrer 
is  overruled,  the  demurrant  may  answer  or  reply,  if  the  court 
is  satisfied  that  he  has  a  meritorious  claim  or  defense  and  did 
not  demur  for  delay.*  The  court  may,  before  or  after  judg- 
ment, in  furtherance  of  justice,  and  on  such  terms  as  may  be 
proper,  amend  any  pleading,  process,  or  proceeding,  by  add- 
ing or  striking  out  the  name  of  any  party,*  or  by  correcting  a 
mistake  in  the  name  of  a  party,'  or  a  mistake  in  any  other  re- 
spect, or  by  inserting  other  allegations  material  to  the  case,  or 
when  the  amendment  does  not  substantially  change  the  claim  or 
defense,  by  conforming  the  pleading  or  proceeding  to  the  facts 
proved;  and  when  an  action  or  proceeding  fails  to  conform 
to  the  provisions  of  this  title  of  the  code,  the  court  may  per- 
mit the  same  to  be  made  conformable  thereto  by  amendment." 
Amendments  under  this  provision  rest  entirely  within  the 
discretion  of  the  court,  and  should  be  allowed  at  any  stage  of 
the  trial  in  furtherance  of  justice.^  In  fact  it  is  considered 
the  duty  of  the  court  to  so  allow  the  amendment.^  This, 
however  is  subject  to  the  limitation  that  the  cause  of  action 
must  not  be  changed,  nor  cause  delay,  or  be  prejudicial  to  the 
defendant,*  nor  should  the  amendment  leave  the  cause  of  ac- 

1  O.   Code,  sec.  5111 ;   Quinlan  v.  Co.  v.  Wysong,  8  O.  C.  C.  211,  212, 
Danford,  28  Kan.  507.  aTiiendment  after  verdict 

2  O.  Code,  sec.  5112.  '  Tli  is  does  not  substantially  change 

3  O.  Code,  sec.  5113;  Roose  v.  Per-  the  claim  or  defense.     Dewey  v,  Mr- 
kins,  9  Neb.  304,  310.  Lain,  7  Kan.  126. 

<  Liggett  V.  Ladd,  23  Greg.  26;  31  *'0.  Code,  sec.  5114 

Pac.  Rep.  81  (1892).     The  real  party  in  'Railroad  Co.  v.  Brown,  29  Nel'. 

interest  may  be  substituted.  Clawson  492 ;  Link  v.  Jarvis,  33  Pac.  Rep.  20(i 

V.  Cone,  2  Handy,  67.     As  to  adding  (Cal;  1893) ;  Guidery  v.  Green,  95  Cal. 

or  striking  out  the  name  of  a  party,  630;  30  Pac.  Rep.  786;  Railway  Co. 

see  Ansonia   Rubber  Co.  v.  Wolf,  1  v.  Morgan,  132  Ind.  430 ;  31 N.  E.  Rep. 

Handy,  236.     As  to  amendment  add-  661  (1892). 

ing  new   parties,   see    Liebmann  v.  8  Becker  v.  Walworth,  45  O.  S.  17."). 

McGraw,  3  Wash.  520.     See  Railway  »HaIl   v.   Railway  Co.,  84    lowji, 

311 ;  51  N.  W.  Rep.  150  (1892). 


§  128.]  AMENDMENTS,  ETC.  123 

tion* incomplete.'  "Where  justice  requires  it,  an  amendment 
may  be  made  in  the  court  of  last  resort  ^  as  well  as  upon  np- 
peal.'  The  petition  may  be  amended  to  conform  to  the  proof ;  * 
as,  for  instance,  where  the  proof  shows  that  the  plaintiff  had 
been  run  over,  which  the  petition  fails  to  state,  it  may  be 
amended  to  meet  the  proof.^  An  amendment  may  be  made 
by  inserting  the  time  of  payment  of  a  note  sued  upon,"  or  the 
dates  when  slanderous  words  were  spoken  may  be  inserted  by 
amendment  in  an  action  for  slauderJ  And  in  an  action  on  a 
contract  the  petition  may  be  amended  so  as  to  claim  the  act- 
ual value  of  work  done  and  materials  furnished  instead  of  the 
contract  price  as  originally  claimed.^  A  new  cause  of  action 
not  inconsistent  with  the  one  originally  stated  may  be  set 
forth ; '  or  a  petition  claiming  damages  for  a  wrongful  arrest 
may  be  amended  by  striking  out  the  averment  of  "  want  of 
probable  cause  "  and  alleging  that  it  was  made  illegally  and 
with  force ;'°  or  matter  may  be  more  fully  set  out.''  Addi- 
tional material  allegations  which  change  the  nature  of  the  ac- 
tion may  be  inserted,''^  so  long  as  the  subject-matter  of  the 
action  remains  the  same.''  Matters  of  description  in  a  suit 
affecting  realty  may  be  changed ;  '^  and  so  may  some  fact 
omitted  in  a  petition  essential  to  raise  a  duty  involved  in  the 
action  be  supplied,'^  or  the  prayer  may  be  changed.'"  But  such 
an  amendment  will  be  unavailable  unless  the  original  petition 
contained  a  cause  of  action."    It  has  been  held  that  amend- 

1  Ellison  V.  Railroad  Co.,  87  Ga.  691.       w  Spice  v.  Steinrock,  14  O.  S.  213. 

2  Humphries  v.  Spafford,  14  Neb.    A  part  of  a  cause  of  action  may  be 
488.  490.  withdrawn.     Watson  v,   Rushmore, 

3Horton    v.    Horner.   14  O.    437;  15  Abb.  Pr.  51. 

Grant  V.  Ludlow,  8  O.  S.  1 ;  Brock  v.  ^^  Hiutrager  v.  Richter,  52   N.  W. 

Bateraan,  25   O.  S.  609 ;  Kilgore  v.  Rep.  188  (Iowa,  1892J. 

Emmett,  33  O.  S.  410.  12  Railway  Co.  v.  Salmon.  14  Kan. 

4  McWhinne  v.  Martin.  77  Wis.  182.  512. 

See  Railway  Co.  v.  Morgan.  31  N.  K  13  Baldock  v.  Atw  ood,  21  Oreg.  73. 

Rep.  661.  1^  War4  v.  Parlin,  30  Neb.  376 ;  46 

5  Foley  V.  S.  &  T.  Co.,  85  Mich.  7.  N.  W.  Rep.  529  {1890>     See  Frey  v. 

6  Tribune  Pub.  Co.  v.  Hamill,  2  Colo.  Owens,  27  Neb.  862. 

App.  237 ;  30  Pac.  Rep.  137  (1892).  "  Ellison  v.  Railroad  Co.,  87  Ga.  691. 

7  Beneway  v.  Thorp,  77  Mich.  181.  16  Draper  v.  Moore,  2  C.  S.  C.  R  167 ; 

8  School  District  v.  Boyer,  46  Kan.  Getty  v.  Railroad   Co.,  6  How.  Pr, 
54;  26  Pac.  Rep.  484  (1891).  269:  Dawson  v.  Mighton,  1  Clev.  Rep. 

9  Brown    v.   Leigh,   49  N.   Y.  78;  115. 

Sheldon  v.  Adams,  41  Barb.  54.  '"  Dawson  v.  IMigbton,  supra. 


124  A>!ENDMENTS,  ETC.  [§§  129,   130. 

ments  may  be  made  by  reference  to  and  adoption  of  specified 
portions  of  counts,  and  by  adding  thereto  averments  so  as  to 
constitute  another  separate  count.^  An  amendment  may  be 
made  for  the  purpose  of  explanation  or  more  fully  setting 
forth  a  cause  of  action.-  Greater  privileges  are  granted  a  de- 
fendant in  respect  to  amendment.  He  may  urge  as  many 
defenses  as  he  may  have,  and  he  may  change  or  add  to  them, 
and  is  restricted  only  to  the  extent  that  he  should  not  be  al- 
lowed to  set  up  a  new  defense  late  in  the  action.^ 

See.  129.  Same  —  After  demurrer  sustained. —  If  the  de- 
murrer to  a  pleading  be  sustained  the  adverse  party  may 
amend,  if  the  defect  can  be  remedied  by  amendment,  as  the 
discretion  of  the  court  may  direct.*  But  where  leave  to  amend 
is  not  granted  judgment  may  be  rendered  on  the  petition.* 
And  if  a  petition  is  amended  after  a  demurrer  is  sustained  all 
errors  are  thereby  waived.^  And  so  with  a  defendant  who 
files  an  amended  answer  after  demurrer  has  been  sustained  to 
his  original  answer.*  A  defendant  is  not  entitled  as  a  matter 
of  right  to  demur  anew  to  an  amended  pleading.^  And  it 
cannot  lie  on  the  ground  that  it  predicates  its  right  to  recover 
upon  a  fact  which  did  not  exist  when  the  original  petition 
was  filed.® 

Sec.  130.  Continuance  after  amendment. —  When  either 
party  amends  a  pleading  or  proceeding  and  the  court  is  satis- 
fied, by  aflBdavit  or  otherwise,  that  the  adverse  party  can- 
not be  ready  for  trial  in  consequence  thereof,  a  continuance 
may  be  granted  to  some  day  in  term,  or  to  another  term  of 
court.^*'  After  filing  an  amended  petition  the  defendant  is  en- 
titled to  the  usual  time  in  which  to  answer.^^  A  court  may 
properly  refuse  to  admit  an  amendment  which  may  necessi- 

1  Birmingham,  etc.  Ry.  Co.  v.  Allen,  Pac.  Rep.  386  (1892) ;  Evans  v.  Insur- 
13  S.  Rep.  8  (Ala.,  1892).  ance  Co.,  5  Ind.  App.  198;  31  N.  E. 

2  Valencia  v.  Couch,  33  Cal.  339 ;  Rep.  843  (1892) ;  Harris  v.  Railroad 
Stryker  v.  Bank,  28  How.  Pr.  20.  Co.,  88  Va.  560  (1892). 

3  Bryant  on  Code  Pldg.,  sec.  230.  8  Smith  t.  Dorn,  96  Cal.  73. 

See  an^e,  sec.  78.  ^Null  v.  Jones,  5  Neb.  500.     Only 

*0.  Code,  sec.  5116.  the  amended  pleading  can  be  looked 

SDevoss  V.  Gray,  22  0.  S.  159.  160.  to.     Id. 

6  Gale  V.  Tuolumne  W.  Co.,  14  Cal.  lOQ.  Code,  sec.  5117. 

26 ;  Canceart  v.  Henry,  33  Pac.  Rep,  ^i  Mather  t.  Furoace  Co.,  1  W.  L.  M. 

92  (Cal.,  1893).  351, 

''Sylvester  v.  Craig,  18  Colo.  44;  31 


§§  131,  132.]  AMENDMENTS,  ETC.  125 

tate  a  continuance  without  abusing  its  discretionary  powers.* 
Where  delay  is  caused  by  an  amendment  to  an  answer  the 
court  may  impose  such  terms  as  will  compensate  the  plaintiff 
for  any  injury  caused  t hereby .- 

Sec.  131.  Ameudment  relates  back.—  The  amended  plead- 
ing is  substituted  for  and  takes  the  place  of  the  original;'  the 
latter  of  which  is  disregarded  and  the  case  tried  upon  the 
amended  one,  and  no  benefit  can  be  derived  from  the  original.* 
The  amended  pleadmg  or  petition  relates  back  to  the  com- 
mencement of  the  action,  and  the  rights  of  the  parties  are 
determined  as  of  that  time ;  the  statute  of  limitations  ceases 
to  run  when  the  original  petition  is  filed.* 

Sec.  132.  Ameiidmeiit,  how  made, —  Some  courts  have 
held  it  to  be  the  settled  and  approved  practice  to  make  minor 
amendments,  such  as  adding  to  or  striking  out  the  name  of  a 
party,  correcting  dates  or  obvious  errors,  by  way  of  inter- 
lineation and  erasure.  But  where  new  claims  and  demands 
are  introduced,  or  allegations  are  added  or  stricken  out,  the 
pleading  should  be  rewritten  and  the  new  matter  set  forth 
as  in  an  original.  It  cannot  be  done  by  mutilating'  or  alter- 
ing the  files.*^  The  rule  as  shown  by  the  authorities  in  the 
note  is  believed  not  to  be  the  universal  one.'  It  is  not  in 
any  event  necessary  to  rewrite  the  entire  pleading,  but  the 

iSkagil  Ry.  etc.  v.  Cole,  2  Wash.  1890);  Wisner  v.Ocumpaugh,  TIN.  Y. 

57.  113. 

2  Burns  v,  Scooffy,  98  Cal.  271;  33  ^Hill  v.  Supervisor,  etc.,  10  O.  S. 

Pac.  Rep.  86  (1893) ;  Griffin  v.  Same'  621.     In   Missouri  it  is  held  that  it 

33  Pac.  Rep.  88  (Cal.,  1893).  may  be  made  by  interlineation,  even 

» Bank  v.   Telegraph  Co.,  30  O.  S.  an  averment   of   an    additional  de- 

555;  Gillman  v.   Cosgrove,   22   Cal.  mand.     South  Jophin   Land    Co.  v. 

356;  Brown  v.  Mining  Co.,  32  Kan.  Case,  104  Mo.  572.     See  Werborn  v. 

^28.  Austin,  8  S.  Rep.  280;  82  Ala.  498; 

*Bank    v.   Telegraph   Co.,   siqyra;  Fitzpatrick    v.   Gebhart,   7  Kan.  35, 

Smith  V.  Wigton.   35   Neb.  460 ;    53  holding  that  it  may  be  made  by  in- 

N.  W.  Rep.  374  (1892).     An  amended  terlineation  by  writing  on  separate 

answer  supersedes  the  first.     Reihl  v.  paper.     If  the  amendment  is  short 

Likowski,  33  Kan.  515.  and  scarcely  if  at  all  material,  it  is 

5  Barber  v.  Reynolds.  33  Cal.  497 ;  not  an  abuse  of  discretion  to  allow 

Allen  V.  Marshall,  34  Cal.  165 ;  Brown  it  to  be  made  by  interlineation.     See 

V.  M.  &  S.  Co.,  32  Kan.  528 :  Loren-  Simpson  v.  Greeley,  8  Kan.  586. 

zana  V.  Camarillo.  45  Cal.  125;  Link  'See  ante.  sec.  20:  Blank  v.  Mor- 

V.  Jarvis.  33  Pac.  Rep.  206  (Cal.  1893) :  rison.  1  Clev.  Rep.  195. 
Miller  V.  Cook,  25  N.  K  Rep.  756  (111., 


126  AMENDMENTS,  ETC.  [§  133. 

amended  part  may  be  written  upon  separate  paper,  and  alle- 
gations in  the  original  pleading  may  be  incorporated  into  the 
amended  one  by  reference.*  The  better  and  more  orderly' 
course,  however,  is  to  rewrite  the  original  and  incorporate 
the  amendment  in  it. 

Sec.  133.  Supplemental  pleadings. —  The  right  to  file  sup- 
plemental pleadings  conferred  by  the  code  simply  declares 
the  law  as  it  existed  before,^  and  while  it  is  so  conferred  by 
statute  it  is  still  largely  discretionary  with  the  court.'  It  can 
only  be  allowed  on  motion,  but  should  not  be  permitted  upon 
trial.*  It  is  provided  that :  Either  party  may  be  allowed,  on 
such  terms  as  to  costs  as  the  court,  or  a  judge  thereof,  may 
]irescribe,  to  file  a  supplemental  petition,  answer  or  reply,'  al- 
leging facts  material  to  the  case  which  occur  subsequent  to 
the  filing  of  the  former  petition,  answer  or  reply;  but  reason- 
able notice  of  the  application  must  be  given  when  the  court 
or  judge  so  requires.^  It  is  almost  a  matter  of  course  to  allow 
a  supplemental  pleading  to  be  filed,  when  the  application  is 
promptly  made,^  though  it  should  not  be  allowed  upon  an 
ex  2>aHe  application.^  It  is  designed,  not  to  supply  omissions 
or  defects,  but  to  introduce  facts  that  have  transpired  since 
the  action  was  brought,  to  strengthen  a  cause  of  action  or  de- 
fense.*'  Unlike  an  amended  petition,  a  supplemental  one- 
never  takes  the  place  of  an  original ;  the  issues  joined  in  the 
original  pleadings  remain  as  issues  to  be  tried,  and  as  a  gen- 
eral rule  the  supplemental  petition  does  not  state  a  cause  of 
action.'"  Upon  the  theory,  therefore,  that  a  supplemental 
petition  is  not  an  independent  one,  or  complete  in  itself,  but 
must  be  taken  and  considered  with  the  original,  to  constitute 
the  petition,  a  demurrer,  therefore,  should  not  be  filed  to  the 

1  Mahaska  County  State  Bank  v.  '  Sage  v.  Mosher,  17  How.  Pr.  367. 

Crist,  54  N.  W.  Rep.  450  (la.,  1893);  spleischman  v.  Bennett.  79  N.  Y. 

Birmingham,  etc.  Ry.  Co.  v.  Allen,  579. 

13  S.  Rep.  8  (Ala.,  1892i;  Eigenman  sNave  v.  Adams,  107   Mo.  414-15; 

T,  Rockport,  etc.,  79  Ind.  41.  Dillman    v.   Dilhnan,    90   Ind.   585  :: 

-  Spears  v.  Mayor,  72  N.  Y.  442.  Porter  v.  Wills,  6  Kan.  453 ;  Gibbon 

3Medbury  v.  Swan,  46  N.  Y.  200;  v.  Dougherty,  10  O.  S.  365. 

Smith  T.  Smith.  22  Kan.  609:  Hard-  layers  v.  Met.  EL  Ry..  12  N.  Y.  S. 

ing  V.  Minear.  54  Cal.  69^.  2 ;  Hay  ward  v.  Hood.  44  Hun,  129 : 

i  Lyon  V.  Isett,  42  How.  Pr.  155.  Farmers'  L.  &  T.  Co.  etc.  v.  Tel.  Co.,. 

5  Ormsbee  v.  Brown,  50  Barb.  436.  47  Hun,  315. 

«0.  Code,  sec.  5119. 


§  134.]  AMENDMENTS,  ETC.  127 

supplemental  pleading,  as  it  is  not  authorized  by  the  code. 
This  view  is  adopted  by  a  number  of  authorities.*  A  defend- 
ant may  also  be  permitted  to  file  a  supplemental  answer,^  and 
the  plaintiff  a  supplemental  reply.'  The  course  pursued  to 
obtain  leave  to  file  a  supplemental  pleading  is  to  file  a  mo- 
tion for  that  purpose,  which  is  generally  supported  only  by 
professional  statements  of  counsel.  The  name  of  a  pleading 
is  not  controlling  and  if  one  be  styled  supplemental  but  con- 
tain facts  which  should  properly  be  in  an  amended  petition,  it 
will  be  so  treated.*  To  avoid  repetition  it  may  be  made  a 
part  of  the  original  petition  by  reference.* 

Sec.  134.  Same  continued  —  Supplemental  petition. —  A 
new  cause  of  action  or  claim  cannot  be  set  up  in  a  supple- 
mental petition,  especially  one  to  which  the  plaintiff  was  not 
entitled  when  he  commenced  his  action."  As  already  stated,^ 
only  those  rights  which  have  accrued  subsequently  to  the  fil- 
ing of  a  petition,^  as  title  acquired  after  suit  is  brought,  may 
be  set  up;^  or  a  suit  may  be  continued  by  supplemental  plead- 
ing against  a  representative  of  a  deceased  party;'"  or  to  in- 
clude a  note  falling  due  during  pendency  of  foreclosure  pro- 
ceedings;" or  it  may  not  only  insist  upon  relief  already 
prayed  for,  or  upon  different  relief  when  facts  occurring  since 
may  require  it ;  '^  and  by  stockholders  seeking  to  enforce  a 
contingent  liability  of  other  stockholders  who  have  assigned 
their  stock ;  '^  or  new  parties  defendant  who  have  become  lia- 
ble since  the  filing  of  the  action  may  be  thus  brought  in."  A 
wholly  defective  petition,  however,  cannot  be  amended  by 
filing  a  supplemental  petition  founded  upon  matters  which 
have  subsequently  taken  place.'^ 

'  Myers  v.  Met.  El.  Ry.,  12  N.  Y.  S.  Farmers',  etc.  Trust  Co.  v.  Telegraph 

2;  Lewis  v.  Rowland,  30  N.  E.  Rep.  Co.,  47  Hun,  315. 
796;  131    Ind.   37  (1893);    Peters    v.        7  ^jife,  sec.  123. 
Banta,  120  Ind.  416;  Farris  v.  Jones,        sporter  v.  Wells,  6  Kan.  453. 
112  Ind.  498.  9  Moon  v.  Johnson,  14  S.  C.  434. 

2Hoyt  V.  Sheldon,  4  Abb.  Pr.  59.  l«  Carter  v.  Jennings,  24  O.  S.  182. 

3  Ormsbee  v.  Brown,  50  Barb.  436.       n  Glenn  v.  Hoflf man,  3  W.  L.  M.  599. 

< Cincinnati  v.  Cameron,  33  O.  S.       12 Miller  v.  Cook,  135  III.  192. 
336.    See  Miller  v.  Cook,  135  111.  192;       iSKilgrus  v.  Si.  Ry.  Co.,  8  W.  L.  B. 

Lewis  V.  Rowland,  131  Ind.  37.  23. 

5  Gibbon  v.  Dougherty,  10  O.  S.  365.       ^*  Prouty  v.  Railroad  Co.,  85  N.  Y. 

« Tiffany  v.  Bowerman,  2  Hun,  643 ;  272. 

15  Miller  v.  Cook.  135  111.  193. 


12S 


AMENDMENTS,  ETC. 


[§§  135-137. 


Sec.  135.  Same  eoiitiiiiied  —  Supplemental  answer. —  A 

defendant  is  given  more  latitude  than  is  the  plaintiff  in  refer- 
ence to  filing  supplemental  answers.  A  supplemental  answer 
takes  the  place  of  the  \Aesi  pitis  darreigyr  continuance  at  com- 
mon law.  and  must  be  pleaded  before  the  next  continuance, 
after  the  facts  or  events  have  occurred  and  become  known.^ 
That  a  defendant  may  file  such  an  answer  as  a  matter  of  right, 
the  proposed  plea  must  be  true  and  a  good  defense.-  He  may 
introduce  matters  of  defense  which  existed  at  the  time  of  fil- 
ing his  original  answer  but  of  which  he  was  ignorant ;  ^  or  title 
acquired  during  the  pendency  of  the  suit,  and  other  matters 
subsequently  arising,*  if  material  to  the  defense,'  though  as  a 
rule  a  technical  defense  should  not  be  allowed  to  be  filed  after 
time  to  answer  has  expired.'  Although  the  right  to  file  a  sup. 
plemental  answer  is  in  a  measure  discretionary,'  yet  if  the 
facts  set  forth  make  a  perfect  defense,  it  becomes  the  duty  of 
the  court  to  admit  it.^ 

See.  136.  Immaterial  errors. —  The  code  requires  that  in 
every  stage  the  court  must  disregard  any  error  or  defect  in 
the  pleadings  or  proceedings  which  does  not  affect  the  sub- 
stantial rights  of  the  adverse  party,  and  no  judgment  shall  be 
reversed  by  reason  of  such  error  or  defect."  This  provision 
has  reference  to  motions  to  amend,^"  or  other  motions  touching 
formal  matters,^^  and  unless  there  has  been  an  abuse  of  dis- 
cretion the  ruling  of  the  court  thereon  cannot  be  disturbed. 

Sec.  137.  Consolidation  of  actions. — When  two  or  more 
actions  are  pending  in  the  same  court,  the  defendant  may,  on 
motion,  and  notice  to  the  adverse  party,  require  him  to  show 
cause  why  the  same  shall  not  be  consolidated ;  and  if  it  appear 
that,  at  the  time  the  motion  is  made,  the  actions  could  have 
been  joined,  and  if  the  court  find  that  they  ought  to  be  joined, 
the  several  actions  shall  be  consolidated.^'^    The  whole  question 


1  Tilton  V.  Morgaridge,  12  O.  S.  104. 

2  Morel  V.  Garelly,  16  Abb.  Pr.  269. 

3  Hoyt  V.  Sheldon,  4  Abb.  Pr.  59. 

4  Moss  V.  Shear,  30  Cal.  467. 
sRadley  v.  Houghtaling.  4  How. 

Pr.   251;  Lyou   v.  Isett,  42   How.  Pr. 
155. 

6  Hoyt  V.  Sheldon.  4  Abb.  Pr.  59. 

7  Medbury  v.  Swan,  46  N.  Y.  200 ; 


Teflft  V.  Tiery,  22  Kan.  753 ;  Spears  v. 
Mayor,  72  N.  Y.  442. 
s  Drough  V.  Curtis,  8  How.  Pr.  56. 

9  O.  Code,  sec.  5115. 

10  Fitzgerald  v.  Neustadt,  91  CaL 
600 ;  27  Pac.  Rep.  936 ;  Rogers  v.  Hodg- 
son. 46  Kan.  276. 

1'  Bear  v.  Knowles,  36  O.  S.  43. 
12  0.  Code,  sec.  5120. 


I  13T.J  AMENDMENTS,  ETO.  129 

under  this  provision  hinges  on  the  fact  whether  the  two  cases 
may  properly  be  joined.^  And  the  power  to  order  a  consolida- 
tion exists  independently  of  statute.'  Where  actions  brought 
by  different  parties  are  consolidated  without  change  in  the 
pleadings,  the  petition  of  one  plaintiff  cannot  aid  that  of 
another  of  which  it  is  no  part,^  and  the  original  actions  are 
discontinued,  the  consolidated  one  only  remaining.^  An  action 
for  services  may  be  consolidated  with  one  for  breach  of  con- 
tract of  sale;*  or  several  actions  in  ejectment;®  or  a  separate 
suit  upon  a  note  with  one  upon  the  mortgage  securing  it  may 
be  consolidated.'  The  object  of  consolidation  is  to  prevent  a 
multiplicity  of  suits  and  to  save  costs. 

1  Newberry  v.  Alexander,  44  O.  S.  *  Hiscox  v.  N.  Y.  S.  Zeitung,  93  N. 

346.  Y.  S.  682. 

2 Patterson  v.  Eakin,  87  Va.  49;  12  'Grant  v.  Davis,  31  K  E.  Rep.  587 

S.  E.  Rep.  144  (1890).  (Ind.  App.,  1893). 

3  Hinckley  v.  Pfister,  83  Wis.  64.  «  Jackson  v.  Stiles,  5  Cow.  282. 

'  Hewlett  V.  Martin,  3  W.  L.  G.  266. 
9 


CHAPTER  11. 

ACCORD  AND  SATISFACTION. 


Sec.  138.  Defined. 

139.  Consideration  therefor. 

140.  What  constitutes  an  accord 

and  satisfaction. 

141.  Who  may  make. 

142.  Rules  of  pleading  in  accord 

and  satisfaction. 

143.  Setting  aside. 


Sec  144.  General  answer  of  accord 
and  satisfaction. 

145.  Answer    claiming     settle- 

ment by  note. 

146.  Answer  pleading  compro- 

mise. 

147.  Answer  pleading  compro- 

mise with  creditors. 


Sec.  138.  Defined. —  An  accord  and  satisfaction  is  defined 
to  be  an  agreement  between  parties  to  receive  some  act  or 
thing  in  satisfaction  of  a  claim  or  injury;  to  be  of  any  effect 
as  a  defense  or  bar,  it  must  be  upon  a  consideration;  it  is 
also  essential  that  there  be  an  actual  acceptance  before  satis- 
faction will  be  deemed  to  have  been  made ;  as  an  accord  with- 
out a  satisfaction  is  not  a  bar  to  an  action ;  there  must  also 
be  a  performance  under  the  accord.^ 

Sec.  139.  Consideration  therefor. —  An  accord  and  satis- 
faction being  a  new  agreement  between  parties  into  which 
an  original  one  is  merged,  must  necessarily  be  upon  a  new 
consideration,  as  any  other  contract.  While  it  may  be  true 
that  what  will  or  will  not  constitute  a  consideration  may  de- 
pend upon  the  particular  circumstances  of  each  case,^  there 
have  been  many  adjudications  upon  this  question  which  will 
serve  as  a  guide  in  like  cases.  A  mere  moral  obligation,  how- 
ever, cannot  be  deemed  a  sufficient  consideration ;  an  obliga- 
tion of  honor  cannot  be  enforced ;  as,  for  example,  where  a 
man  has  compromised  with  his  creditors  by  paying  a  certain 
per  cent,  of  his  indebtedness,  a  subsequent  promise  by  the 
debtor  to  pay  one  of  the  creditors  the  full  amount  of  his 
indebtedness  is  without  consideration,  and  cannot  be  enforced.' 


1  Ellis  V.  Bitzer,  2  O.  89-94;  Frost 
V.  Johnson,  8  O.  394;  Ogilvie  v.  Hall- 
man,  58  la.  714;  Russell  v.  Lytle,  6 
Wend.  390. 


2  Hall  V.  Smith,  15  la.  584;  Bab- 
cock  V.  Hawkins,  23  Vt.  561. 

3  Lewis  V.  Simons,    1   Handy,   83; 
Way  V.  Langley,  15  O.  S.  392.    See  as 


§  140.]  ACCORD    AND    SATISFACTION.  131 

Among  the  things  which,  have  been  held  to  constitute  a  consid- 
eration is  an  agreement  to  pay  at  an  earlier  date  or  different 
place;  ^  or  the  taking  of  other  and  different  securit}'-;^  but  in 
order  that  the  acceptance  of  new  security  shall  operate  as 
payment  it  must  appear  that  such  was  the  intention  of  the 
parties.^  Or  a  release  of  a  claim  which  might  be  brought 
against  a  party ;  even  though  the  claim  be  invalid,  it  will  nev- 
ertheless operate  as  a  sufficient  consideration  to  support  an 
accord.*  Mutual  promises  to  do  something  in  the  future 
simply  amount  to  an  accord  without  satisfaction,  and  do  not, 
therefore,  furnish  any  consideration  ;5  nor  does  an  agreement 
by  parties  to  a  suit  that  it  shall  be  decided  for  one  or  the 
other  according  to  the  result  of  another  suit  pending  between 
them  constitute  a  consideration,  as  it  is  a  mere  waffer.  and 
void.^  But  a  compromise  made  by  a  debtor  with  his  creditor 
by  which  it  was  agreed  that  the  debtor  should  pay  a  claim 
which  the  creditor  was  owing  a  third  party,  which  is  less, 
however,  than  the  amount  due  from  his  debtor,  is  neverthe- 
less a  good  consideration ;  especially  where  it  is  made  under 
an  agreement  that  a  trial  should  not  be  had  of  a  suit  which 
the  creditor  had  instituted  for  the  enforcement  of  his  claim 
while  negotiations  are  pending  for  settlement,  the  compro- 
mise being  the  result  of  that  agreements  The  new  consider- 
ation having  been  accepted  and  acted  upon,  a  suit  cannot  then 
be  brought  upon  the  original  liability,  but  must  be  upon  the 
compromise.^  The  subject  of  consideration  runs  largely  into 
the  next  section. 

Sec.  140.  What  constitutes  an  accord  and  satisfaction.— 
The  rule  at  common  law  and  the  general  American  rule  sup- 
ported by  numerous   authorities  is  that  part  payment  of  a 

to  moral  consideration,  Jennings  v.  *  Wilder    v.  Railroad  Co.,   25  Atl. 

Brown,  9  M.  &  W.  496 ;  Eastwood  v.  Rep.  896  (Vt.,  1892). 

Kenyon,  11  A.  &  E.  438.  6  Frost  v.  Johnson,  8  O.  393;  Dunn 

1  Barry  v.  Goodrich,  98  Mass.  335 ;  v.   Life  Insurance  Co.,  8  Am.  Law 
Bowker  v.  Childs,  3  Allen.  434.  Rec.  569 ;  Bird  v.  Smith,  34  Me.  63 ; 

2  Boyd  V.  Hitchcock,  20  Johns.  76 ;  56  Am.  Dec.  635. 

Pullian  V.  Taylor,  50  Miss.  251 ;  Mc-  6  Gittings  v.  Baker,  2  O.  S.  21. 

Intyre  v.   Kennedy,  29  Pa.  St   448;  Ulitchell  v.  Knight,  7  O.  C.  C.  204. 

Bowker  v.   Harris,  30  Vt.  424 ;  Kel-  8  Parkison    v.  Boddiker,    10   Colo, 

ler  V.  Salisbury,  33  N.  Y.  648.  503 ;  15  Pac.  Rep.  806  (1887). 
•Kemmer's  Appeal,  102  Pa.  St.  558. 


132 


ACCORD    AND    SATISFACTION. 


[§  140. 


debt,  although  accepted  by  a  creditor  in  satisfy ,ction  thereof, 
does  not  constitute  an  accord  and  satisfaction,  nor  operate  as 
a  bar  to  an  action  for  the  recovery  of  a  balance,  even  though 
the  parties  have  expressly  agreed  that  it  shall  be  a  release  of 
the  entire  amount ;  there  is  no  consideration,  but  is  merely  a 
midum  pactum}  The  strict  common-law  rule,  however,  was 
so  technical  and  so  often  fostered  bad  faith  that  it  has  been 
very  materially  departed  from,  and  a  very  slight  considera- 
tion allowed  to  support  an  agreement  to  accept  a  less  sum, 
or  an  actual  acceptance  of  a  loss  sum,  made  binding  upon  va- 
rious considerations ;  as,  for  example,  payment  at  a  different 
place  than  that  named  in  the  contract  or  before  the  debt  is 
due;^  or  a  payment  of  a  debt  in  bills  of  exchange,  goods  on 
hand  and  goods  to  be  manufactured,  although  it  amounts  to 
less  than  the  debt ; '  but  the  surrender  of  a  doubtful  right  and  a 
settlement  made  upon  it,  in  the  absence  of  fraud,  will  not  be 
disturbed,  especially  where  the  parties  cannot  be  restored  to 
their  original  situation.*  Want  of  consideration  cannot  be 
urged  in  such  case  as  a  defense,  as  the  compromise  of  a  doubt- 
ful right  or  claim  is  regarded  as  a  sufficient  foundation  for  an 
agreement.'  It  has  been  held  in  Pennsylvania  that  a  partial 
payment  of  an  undisputed  claim  under  an  agreement  to  re- 
ceive it  in  full  satisfaction  cannot  be  treated  as  an  accord  and 


1  Bailey  v.  Day,  26  Me.  88 ;  White 
V.  Jordan,  27  Me.  370 ;  Rose  v.  Hall, 
2G  Conn.  392 ;  S.  C,  68  Am.  Dec.  403 ; 
Kerr  v.  O'Connor.  63  Pa  St.  341; 
Tuitchell  V.  Sha%v.  57  Am.  Dec.  80; 
Grinnell  v.  Spike.  128  Mass.  25 ;  War- 
ren V.  Skinner,  20  Conn.  559;  Ryan 
V.  Ward,  48  N.  Y.  204;  Fire  Insur- 
ance Co.  V.  Wickham,  141  U.  S.  464; 
W\\\en  V.  Eldridge,  126  Ind.  461 ;  S.  C, 
27  N.  E.  Rep.  132.  See  Curran  v. 
Rummell,  118  Mass.  482;  Clifton  v. 
Litchfield,  106  Mass.  34.  If  the  debt 
is  uncontroverted,  payment  of  an 
amount  less  than  the  amount  due  is 
no  defense.  Fletcher  v.  Wurgler,  97 
Ind.  223;  Markel  v.  Spitler,  28  Ind. 
488.  The  assignee  is  bound  by  the 
agreemeutof  the  assignor.    Pontious 


V.  Durflinger,  59  Ind.  27;  Shade  v. 
Creviston.  93  Ind.  591. 

2  Ante,  sec.  139 ;  Harper  T.  Graham, 
20  O.  105 ;  Smith  v.  Wyatt,  2  G  S.  S. 
R  13:  Mitchell  v.  Kniglit,  7  O.  C.  C. 
R  207;  Jones  v.  Perkins,  64  Am. 
Dec.  136 ;  Fenwick  v.  Phillips,  3  Met 
87 ;  McKeuzie  v.  Culbreth,  66  N.  C. 
534 ;  Harriman  v.  Harriman,  12  Gray, 
341. 

3  Rose  V.  Hall,  68  Am.  Dec.  402 ;  26 
Conn.  392. 

*  More  V.  Powell,  1  Disn.  144 

5  Svvem  V.  Green,  9  Colo.  358 ;  Moore 

V.   Powell,  supra;  Commissioners  v. 

Hunt.   5    O.  S.  488;    S.    C,  67  Am. 

Dec.   303;  Weed   v.    Terry,  45   Am. 

Dec.  257 ;  Mills  v.  Lee,  17  Am.  Dec. 

118. 


§  140.]  ACCOED   AND   SATISFACTION.  133 

satisfaction  so  as  to  prevent  a  recovery  of  the  balance.^  And 
a  promise  made  upon  a  compromise  of  a  doubtful  claim  which 
is  groundless  is  not  binding.^  Even  though  there  may  have  been 
fraud  in  a  settlement  or  compromise,  the  contract  must  be  re- 
scinded and  the  amount  received  thereunder  tendered  back  if 
the  party  desires  to  repudiate  it.^  Dismissal  of  a  suit  for  a 
nuisance  prosecuted  in  good  faith  is  a  good  consideration  for 
a  contract  to  discontinue  the  business,  such  as  a  chemical  lab- 
oratory which  was  the  cause  of  the  nuisance;^  or  the  receipt 
of  a  portion  of  money  lost  at  gambling  may  operate  as  a  satis- 
faction for  a  larger  sum  so  lost.'  If  a  mortgage  be  released  by 
a  compromise  between  parties,  the  transaction  or  compromise 
is  an  entirety  and  the  consideration  for  the  release  cannot  be 
avoided  without  also  avoiding  the  release;'  and  where  a  third 
person  who  has  by  agreement  with  a  mortgagor  assumed  pay- 
ment of  a  note  and  mortgage  desires  to  obtain  more  time,  whicli 
the  holder  refuses,  gives  the  holder  his  check,  and  procures 
another  person  to  buy  the  note  and  mortgage,  such  other  per- 
son not  knowing  that  he  is  buying  from  a  party  who  is  obliged 
to  pay,  but  believing  he  is  buying  title  from  some  one  else, 
may  recover  from  the  maker.' 

There  must  alwavs  be  a  mutuality  of  understanding  be- 
tween the  parties  to  an  accord  and  satisfaction.  So.  where 
an  insurance  company  places  insurance  upon  property  and 
afterwards  there  is  a  re-issue  by  another  company,  and,  loss 
occurring,  the  insured  settled  with  the  first  company  for  a 
certain  sum  in  full  satisfaction  of  his  claim,  and  the  second 
company  settled  upon  the  same  basis,  without  any  agreement 
with  the  insured,  such  an  accord  cannot  be  binding  because 
the  parties  did  not  arrive  at  a  mutual  understanding.*  Where 
a  person  who  has  secured  a  judgment  against  several  parties 
makes  an  arrangement  with  the  sheriff  by  which  a  compro- 
mise is  made  through  that  officer,  and  one  of  the  parties  is 

1  Commonwealth  v.  Cummina  155  5  Smith  v.  Wyatt,  2  C.  S.  C.  R  12. 

Pa.  St.  30 ;  25  Atl.  Rep.  996  (1893).  SHeighway  v.  Pendleton,  15  O.  736 

2Schnell  v.  Nell,  17  Ind.  29;  S.  C,  (1846 j. 

79  Am.  Dec.  453.  7  McFarland  t.  Norton,  3  W.  L.  B. 

'East  Tennessee,  etc.  Ry.  v.  Hayes  368. 

83  Ga.  508  (1889);  Home  Ins.  Co.  v.  6  Detroit,  etc.  Ins.  Co.  v.  Commer- 

McRichards,  121  Ind.  121  (1889).  cial  Mutual  Ins.  Co.,  1  Clev.  Rep.  81. 

<Grasselli  v.  Lowden,  2  Disn.  .323. 


134  ACCORD   AND    SATISFACTION.  [§  141. 

allowed  to  pay  a  certain  sum  in  full  satisfaction  of  the  judg- 
ment against  him,  such  a  payment  amounts  to  an  accord  and 
satisfaction  of  the  whole  judgment.^  Where  a  composition 
has  been  made  by  a  debtor  with  his  creditors  to  pay  them  a 
certain  per  cent,  in  satisfaction  of  his  indebtedness,  and  one 
of  the  creditors  undertakes  to  obtain  for  himself  a  greater 
sum  than  the  others,  and  the  debtor  subsequently  voluntarily 
executes  to  one  of  his  creditors  a  note  for  the  remaining  per 
cent,  of  his  indebtedness  to  him,  which  is  made  payable  before 
the  payments  to  be  made  under  the  composition  agreement  are 
due,  such  a  note  is  without  consideration  and  void  as  to  the 
parties  to  the  original  agreement  as  being  in  fraud  of  their 
rights.^  Such  a  composition  is  not  only  an  agreement  between 
the  creditors  themselves,  but  is  one  also  between  them  and 
the  debtor,  and  the  utmost  good  faith  must  be  observed.  If 
one  creditor  takes  advantage  of  the  others  by  endeavoring  to 
secure  a  greater  amount,  any  obligation  for  sueh  excess  is  held 
to  be  in  fraud  of  others  and  void.^  The  payment  by  one 
jointly  liable  with  others  for  damages  for  personal  injuries  of 
a  sum  upon  an  agreement  by  the  injured  party  not  to  sue, 
though  not  in  settlement  of  damages,  is  not  an  accord  and 
satisfaction ;  *  but  a  settlement  made  with  one  of  several  joint 
trespassers  or  wrong-doers  operates  as  a  satisfaction  to  all, 
and  partial  satisfaction  inures  to  all  of  them.-^  But  it  is  other- 
wise where  the  wrong  done  is  divisible;  it  may  then  become 
a  question  of  fact  for  the  jury.^ 

Sec.  141.  Who  may  make. —  The  object  aimed  at  in  this 
section  is  a  review  of  adjudications  upon  the  subject  of  accord 
and  satisfaction  made  by  the  various  relations  of  parties.  An 
administrator  may  make  settlement  of  the  partnership  affairs 
of  a  deceased  partner  whom  he  represents  with  the  surviving 
partners,  and  relinquish  all  claim  to  real  estate  held  by  the 
partnership  for  partnership  purposes,  the  same  being  regarded 

1  Runyan  v.' Van  Dyke,  7  Am.  L.  5  Maxwell's  Pleading,  p.  414,  and 
Rec.  8.  authorities;  Ellis  v.  Bitzer,  2  O.  80. 

2  Way  V.  Langley,  15  O.  S.  392.  See  po.sf,  sec.  141.     Sef,  also,  I  Am.  & 

3  Ray  V.  Brown,  3  W.  L.  B.  545 ;  Eng.  Ency.  of  Law,  p.  10)^ 
Way  V.  Langley.  15  O.  S.  393.  6  Ellis  v.  Esson,  50  Wis.  iSb. 

<  Chicago  V.  Babcock,  143  111.  358 ; 
32  N.  E.  Rep.  271  (1892). 


§  141.]  ACCOBD    AND    SATISFACTION.  135 

as  personal  property.  His  action  in  this  respect  will  be  bind- 
ing on  the  heirs  of  the  deceased  partnci.'  An  administrator 
may  also  compromise  and  rescind  an  executory  contract  en- 
tered into  by  his  decedent  for  conveyance  of  realty,  where  it 
may  be  to  the  best  interest  of  the  estate  which  he  represents; 
and  courts  will  not  look  with  favor  upon  any  objection  made 
by  the  heirs  at  law,-  and  will  not  aid  them  to  set  aside  an  ar- 
rangement of  this  character  which  is  beneficial  to  the  estate.^ 
After  a  judgment  has  been  rendered  by  a  court,  an  attorney 
has  no  control  over  it,  and  cannot,  therefore,  enter  into  any 
negotiations  which  would  tend  to  render  it  of  no  avail  with- 
out the  consent  of  the  parties  to  the  suit,  to  whom  it  belongs 
entirely.  This  is  the  case  even  though  the  parties  may  be 
entirely  ignorant  of  the  fact  that  the  judgment  has  been  ren- 
dered.* Nor  can  an  attorney  who  is  intrusted  with  the  col- 
lection of  a  note  make  any  arrangement  with  the  maker 
thereof  to  board  his  law  partner  in  settlement  of  the  same. 
His  client  would  have  the  right  to  repudiate  any  such  adjust- 
ment and  to  sue  for  a  recovery  of  the  amount  due  on  the 
note.^  An  agent  who  has  written  authorit}'"  to  see  a  debtor 
"in  regard  to"  a  debt,  with  "full  authority  to  act  for"  the 
creditor  "in  the  matter,"  may  be  authorized  to  receive  from 
the  debtor  any  personal  property  in  satisfaction  of  the  debt." 
And  directors  of  an  insurance  company  who  have  full  power 
to  compromise  any  suit  which  may  be  improvidcntly  brought 
may  do  so  by  the  cancellation  of  policies  and  the  surrender  of 
premium  notes.  Their  action  in  this  respect  may  constitute 
a  defense  against  any  assessment  which  may  be  made  upon 
the  same  notes  on  account  of  any  loss  sustained  prior  to 
the  settlement."'  The  directors  are  charged  with  the  man- 
agement ot  all  the  affairs  of  the  company,  and  power  to  make 
such  adjustments  is  deemed  so  essential  that  its  existence  is 
implied.^    It  has  been  held  in  Ohio  that  one  of  several  joint 

1  Ludlow  V.  Cooper,  4  O.  S.  1.  See,  5  in  re  Temple,  33  Minn.  343 ;  23 
also,  Story  on  Partnership,  sec.  93;  N.  W.  Rep.  463  (1885).  holding  that 
Green  v.  Green,  1  O.  535 ;  Green  v.  the  conuuct  of  the  attorney  was  un- 
Graham,  5  O.  264.  professional. 

2  Ludlow  V.  Cooper,  supra,  6  Oliver  v.  Sterling,  20  O.  S.  391. 

»  Howard  v.  Babcock,  7  O.  405.  '  Wadsworth  v.  Davis,  13  O.  S.  123. 

*  Boylo  V.  Beattie.  2  C.  S.  C.  R  490.        ^  Id. 


136  ACCOKD   AND    SATISFACTION.  [§  141. 

creditors,  who  do  not  sustain  the  relation  of  partners,  cannot 
release  a  debt  due  them  jointly,  so  as  to  make  it  binding  on 
those  not  participating  therein,  but  that  recovery  may  be  had  in 
equity.  So  as  to  a  debtor  who  himself  procures  the  release  from 
some  of  them.  This  action  on  his  part  will  not  preclude  the 
others  from  proceeding  against  him  in  equity  for  their  propor- 
tion.^ A  release,  however,  made  by  one  of  the  creditors  will 
preclude  the  co-creditors  who  do  not  assent  thereto  from  pros- 
ecuting an  action  at  law.  The  distinction  is,  that  in  an  action 
at  law  by  the  creditors  all  must  join  and  all  must  recover,  or 
none  of  them;  while  equity  does  not  require  all  of  the  credit- 
ors to  join,  when  by  such  a  course  justice  would  be  defeated.- 
It  is  said  that,  to  have  the  effect  of  releasing  all,  the  release 
should  be  under  seal.'  The  principle  underlying  this  rule  is 
that  joint  creditors  cannot,  by  a  division  among  themselves, 
acquire  separate  rights  of  action  against  the  debtor ;  that  the 
demand  is  single  and  cannot  be  split.*  So  it  is  held  that,  where 
it  is  necessary  that  several  plaintiffs  must  join  in  an  action,  a 
release  made  by  one  joint  plaintiff  will  operate  as  a  bar  to  an 
action  by  the  remaining  ones ;  as,  where  all  tenants  in  common 
must  join  in  an  action  for  trespass,  a  release  made  by  one  of 
them  will  defeat  any  further  action ; '  or  a  release  by  one  or 
more  parties  to  a  joint  agreement  is  a  bar  to  an  action  by  the 
remainder.*  The  rule  is  different,  however,  as  to  the  release 
of  joint  debtors,  a  release  made  to  one  not  operating  to  the 
benefit  of  his  co-debtors,^  as  will  be  seen  further  along  in  this 
section.     Ohio,  however,  is  an  exception  in  this  respect.* 

"Where  a  compromise  has  been  made  of  a  claim  which  may 
be  regarded  as  of  a  doubtful  character  in  equity,  it  may  never- 
theless raise  a  sufficient  consideration  for  a  compromise  so 
that  a  court  of  equity  will  not  interfere  with  its  fulfillment, 
especially  when  it  is  supported  by  a  moral  obligation.  So 
the  commissioners  of  a  county  may  settle  and  compromise  a 

1  Upjohn  V.  Ewing,  2  O.  S.  14.  See,  5  Austin  v.  Hall,  13  Johns.  286; 
also,  Reigart  v.  Ellmaker,  14  S.  &  R  Decker  v.  Livingston,  15  Johns.  479. 
121;  Eisenhart  V.  Slaymaker,  14  S.  &  6]\iyrick  v.  Dame,  9  Cush.  248; 
R  153.  Tuckerman  v.  Newhall,  17  Mass.  581. 

2  Upjohn  V.  Ewing,  2  O.  S.  14  (1853).  See  Hasack  v.  Rogers,  8  Paige,  229. 

3  1    Am.    &   Eng.    Ency.  of   Law,         •  R  S.,  sen.  8166. 

pp.  103-4.  8 1   Am.   &  Eug.    Ency.   of   Law, 

*  See  ante,  sec.  19.  pp.  103-1.  and  cases  cited. 


§  141.]  AOCOKD   AND   SATISFACTION.  13T 

claim  or  liability  which  may  be  justly  due  the  county,  and,  if 
supported  by  a  moral  obligation  upon  the  part  of  the  county, 
it  will  serve  as  a  sufBcient  consideration  to  warrant  a  court 
of  equity  in  refusing  to  interfere  with  the  settlement.'  A 
compromise  made  and  accepted,  and  benefits  derived  there- 
from, will,  in  the  absence  of  any  fraud  or  unfairness,  be  bind- 
ing upon  all  parties  thereto  and  enforceable  in  equity.  It  is 
well-settled  law  that  a  release  of  one  of  several  joint  tres- 
passers or  tort-feasors  operates  as  a  discharge  of  all.'  The 
principle  upon  which  this  rule  is  based  is  that  the  act  of  one 
of  several  joint  trespassers  is  the  act  of  all,  and  that,  all  uniting 
in  doing  an  unlawful  act,  each  one  is  responsible  for  the  acts 
of  the  others,  and  that  the  plaintiff  may  either  sue  them 
jointly  or  separately.  So  where  an  injured  party  accepts  a 
satisfaction  from  one  merely  as  a  settlement  as  to  him,  but 
not  intending  it  to  operate  as  a  compromise  as  to  the  others, 
the  cause  of  action  is  nevertheless  discharged  as  to  all  of 
them;'  but  the  release  in  such  cases  must  be  a  technical  one 
and  not  merely  by  implication  or  a  covenant  not  to  sue.*  A 
partial  satisfaction  by  one  will  operate  as  a  satisfaction  j^/'o 
tamto  as  to  all."*  Even  though  the  damages  be  uncertain,  a  re- 
lease of  one  for  a  sum  certain  will  release  all,*  It  is  pro- 
vided by  statute  that,  whenever  there  is  a  dissolution  of  a  part- 
nership, one  of  the  partners  may  make  a  separate  composition 
with  a  partnership  creditor  which  shall  operate  as  a  full  and 
effectual  discharge  to  the  debtor  making  the  same,  and  to  hira 
only,  from  all  liability  to  the  creditor  with  whom  the  same  is 
made;^  and  that  such  debtor  may  take  from  the  creditor  a 
note  or  memorandum  in  writing,  exonerating  him  from  any 
individual  liability  incurred  by  reason  of  his  connection  with 
the  partnership,  which  will  operate  as  a  bar  to  any  action  by 
the  creditor  against  him.''     This  compromise,  however,  shall 

1  Shanklin  v.  Commissioners,  21  *  Bailey  r.  Berry,  6  Am.  Law  R. 
O.  S.  575-83 ;  Commissioners  v.  Hunt,    (N.  S.)  270. 

5  O.  S.  488.  5  Merchants'    Bank   v.    Curtiss,   37 

2  See  ante,  sec.  140.  Barb.  317. 

3  Ellis  V.  Bitzer,  2  O.  80  (1825);  f  Long  v.  Long.  57  la.  497;  Urton 
Stone  V.  Fickinson,  5  Allen,  29;  v.  Price,  57  Cal.  270;  Mitchell  v. 
Brown  v.  Cambridge,  3  Allen,  474 ;  Allen,  25  Hun,  543. 

(ioss  V.  Ellison,  136  Mass.  50a  "R  S.  sec.  3162. 

f  R  S.,  sec.  316a 


138  ACCORD   AND    SATISFACTION.  [§  142. 

not  discharge  any  other  partners,  or  impair  the  right  of  the 
creditor  to  proceed  against  any  of  the  members  of  the  part- 
nership who  have  not  been  discharged ;  nor  shall  the  dis- 
charge of  an  individual  member  of  the  firm  prevent  other 
members  from  availing  themselves  of  any  defense  which  they 
might  have  had  were  it  not  for  this  provision,  except  that 
they  shall  not  set  up  the  discharge  of  one  individual  as  a  dis- 
charge of  the  other  partners,  unless  it  appear  that  they  all  were 
intended  to  be  discharged.  A  discharge  of  one  partner  shall 
be  deemed  a  payment  to  the  creditor  equal  to  the  proportion- 
ate interest  of  the  one  so  discharged  in  the  partnership  con- 
cern.^ These  provisions  are  made  applicable  b}'-  statute  -  to  all 
other  joint  debtors  who  may  individually  compromise  their 
joint  indebtedness.  So  that  a  compromise  made  by  one  joint 
debtor  will  only  operate  as  a  discharge  of  his  liability  to  the 
creditor  and  will  not  therefore  release  the  other  joint  obligors. 
Accord  and  satisfaction  may  be  made  by  an  entire  stranger, 
who  has  no  pecuniary  interest  whatever  in  the  subject-matter, 
and  if  accepted  by  the  creditor  will  constitute  a  good  de- 
fense to  an  action  by  him  to  enforce  the  liability  against  the 
debtor.^ 

Sec.  142,  Rules  of  pleading  in  accord  and  satisfaction. — 
It  has  been  shown  that  an  accord  and  satisfaction  to  be  good 
must  be  a  new  agreement  founded  upon  some  new  considera- 
tion. It  is  not  sufficient  that  there  be  simpl}^  an  accord  and 
satisfaction,  but  in  pleading  the  settlement  it  must  bo  averred 
that  the  accord  was  accepted  and  executed.  Mere  readiness 
to  perform  or  a  tender  of  performance,  or  even  a  partial  per- 
formance and  readiness  to  perform  the  rest,  is  not  sufficient.* 
The  petition  must  also  state  that  there  is  nothing  due  the 
plaintiff  from  the  defendant,  and  that  there  has  been  a  full 
and  complete  payment  and  settlement.^  In  })leading  an  ac- 
cord and  satisfaction  with  several  creditors  it  should  be  al- 
leged that  an  agreement  to  accept  the  composition  was  in 

1  R  S.,  sec.  3164.  Am.  Dec.  472 ;  Kerr  v.  O'Conner,  63 

2R  S.,  sec.  3166.  Pa.  St.  347;  Frich  v.  Algeir,  87  Ind. 

SLeavitt  v.   Morrow.   6  0.   S.  72.  256;  Bagle}- v.  Haman,  3'c  Eug.  C.  L. 

But  see  1  Am.  &  Eng,  Ency.  of  Law.  379 ;  Clifton  v.  Litchfield,  106  Mass.  38. 
p.  97.  5  Hall  V.  Smith,  15  la.  584;  Merry 

4Hearn  v.  Kiehi,  38  Pa.  St.  147;  80  v.  Allen,  39  la.  235. 


J 


I  14:3.]  ACCORD    AND    SATISFACTION'.  139 

consideration  of  all  of  the  creditors  joining  therein.^  It  is  not 
necessary,  however,  in  an  action  for  the  recovery  of  goods 
wrongfully  detained,  to  state  in  an  answer  that  there  was  a 
special  agreement  made  by  the  parties;  that  although  the 
plaintiff  had  a  right  to  the  possession  of  the  property  he  had 
waived  the  same.  It  is  competent  to  prove  this  fact  under 
an  answer  which  simply  denies  the  plaintiff's  right  of  posses- 
sion.'^ A  reply  to  a  pleading  of  accord  and  satisfaction  that 
it  is  tainted  with  fraud  and  brought  about  by  undue  influ- 
ence cannot  be  made  available  by  failure  to  tender  the  sum 
received  upon  the  compromise,  where  the  pleading  does  not 
aver  the  payment  of  any  money  to  the  plaintiff.^ 

Sec.  143.  Setting  aside. —  AVhenever  fraud  enters  into 
accord  and  satisfaction  in  any  way  it  will  necessarily  vitiate 
the  same.  Therefore,  if  a  debtor  who  has  made  a  settlement 
with  his  creditors  upon  the  theory  that  he  was  insolvent,  had 
made  a  conveyance  in  fraud  of  his  creditors  prior  to  the  com- 
promise, it  will  be  set  aside;*  or  a  settlement  made  by  a  per- 
son who  has  received  a  personal  injury,  while  he  was  under 
the  influence  of  opiates,  will  be  void.^  And  so  with  a  settle- 
ment made  during  a  sickness  caused  by  injuries,  upon  induce- 
ments made  by  the  agents  of  the  party  inflicting  the  injury;" 
or  the  receipt  of  a  promissory  note  of  a  third  person  in  settle- 
ment of  a  claim  may  be  vitiated,  if  there  was  a  false  represen- 
tation as  to  the  financial  standing  of  the  maker  of  the  note ; ' 
■or,  if  the  parties  to  the  accord  and  satisfaction  have  been 
mutually  mistaken  as  to  some  material  matter,  the' same  may 
be  void ;  ^  or,  if  the  party  signing  the  accord  be  under  some 
restraint  or  duress,  it  may  be  set  aside."  But  it  is  said  that 
when  a  settlement  has  been  amicably  made  between  two 
persons,  one  of  them  cannot  afterwards  claim  that  it  was 
made  under  duress.  If  such  objections  could  be  raised,  every 
adjustment  might  be  destroyed,  and  accord  and  satisfaction 

1  Fellows  V,  Stevens,  24  Wend.  298,  5  Chicago,  etc.  Railroad  Co.  v.  Doyle, 
299.  18  Kan.  58. 

2  Timberlake  v.  McArthur,  8  Am.  «  Eagle  Packet  Co.  v.  Defries,  94  111. 
Law  Rec.  713.  598. 

3  Knoxville,  etc.  R.  R.  Co.  v.  AcuflF,  <  Bridge  v.  Batchelder,  9  Allen,  394 ; 
20  S.  W.  Rep.  348  (Tenn.,  1892).  Pierce  v.  Drake.  15  John.  475. 

*  Richards  v.  Hunt,  27  Am.  Dec.  nVheadon  v.  Olds,  20  Wend.  174; 
«45.     .  Calkins  V.  Griswold.  11  Hun.  208.  210. 

^Rourk(>  V.  St.>rv.  4  E.  D.  Smith.  54. 


140  ACCORD    AND    SATISFACTION.  [§§  144,  145. 

be  unknown  in  law.^    It  might  be  added  that  a  distinction 
can  be  clearly  drawn  between  an  adjustment  amicably  made 
and  one  made  under  duress  or  restraint. 
Sec.  144.  General  answer  of  accord  and  satisfaction, — 

\_Caption.'] 

On  the  day  of  ,  18 —  [or^  after  the  cause  of  ac- 
tion stated  in  the  petition  accrued,  and  before  this  action 

was  brought],  defendant  paid  to  the  plaintiff  the  sum  of 

dollars,  which  sum  the  said  plaintiff  received  in  full  satis- 
faction and  discharge  of  the  claim  set  forth  in  his  said  pe- 
tition. 

Wherefore  he  demands  judgment  for  costs. 

Another  form :  — 

That  he,  tb-^  said  defendant,  before  the  commencement  of 

this  action,  to  wit,  on  the day  of .  IS — ,  paid  to  the 

said  plaintiff  the  sum  of  dollars  in  full  satisfaction  and 

discharge  of  the  sum  in  the  said  breach  of  covenant  men- 
tioned, and  of  all  the  damages  mentioned,  by  reason  of  the 

non-payment  thereof:  which    said  sum   of  dollars   the 

said  plaintiff  then  and  there  accepted  and  received  of  and 
from  this  defendant  in  full  satisfaction  and  discharge  of  the 
said  sum  in  the  said  breach  of  covenant  mentioned,  and  of 
the  damages  of  the  said  plaintiff  by  him  sustained  by  reason 
of  the  said  breach  of  covenant. 

Sec.  145.  Answer  claiming  settlement  by  note. — 

[Capt{o7i,  etc.'] 

That  prior  to  the day  of ,  18 — ,  defendant  made 

several  payments  in  different  amounts  on  the  account  sued 
on,  and  a  dispute  having  arisen  between  the  plaintiff  and  de- 
fendant as  to  the  amount  of  said  payments  and  the  sum  act- 
ually due  on  said  account,  and  in  consideration  of  which,  and 
to  avoid  expense  and  litigation,  it  was  mutually  ao-reed  that 
defendant  should  execute  and  the  plaintiff  receive,  in  full  sat- 
isfaction of  said  account,  the  defendant's  note,  due  on  the 

day  of ,  18 — ,  for  the  sum  of dollars,  in  full  satisfac- 
tion of  said  account  and  in  settlement  of  said  dispute,  which 
note  defendant  then  and  there  executed  to  the  plaintiff,  and 
said  plaintiff  accepted  the  same  in  full  satisfaction  of  said  ac- 
count. 

Note. —  Many  authorities  hold  that  a  note  given  and  actually  received 
and  accepted  in  settlement  of  a  debt  will  bar  an  action  on  the  oritrinal,  even 
though  the  note  is  not  paid,  Wytnan  v.  Fabeus,  111  Mass.  81 ;  Bangor  v. 
Warren,  34  Me.  324;  Stephens  v.  Tlionipson,  28  Vt  77;  Fowler  v.  Bush,  21 
Pick.  230 :  Hudson  v.  Bradley,  2  Cliff.  130.  Circumstances  may,  however, 
vary  cases,  and  evidence  may  be  received  to  show  that  it  was  not  intended 
as  a  settlement  or  payment  of  a  contract  debt  Lovell  v.  Williams,  12-5 
Mass.  439:  Parnham  Machine  Co.  v.  Brock,  113  Mass.  194:  Perrin  v,  Keene, 
19  Me.  35.5 ;  Graham's  Estate.  14  Phila.  2^0,  As  to  checks,  see  Weddigen  v. 
Boston  Elastic  Fabr.  Co.,  100  Mas?.  422, 

'  Matthews  V.  Driggs,  1  W.  L.  B.  31. 


4 


§§  146,  147.]  ACOOED   AND    SATISFACTION.  141 

Sec.  146.  Answer  pleading  compromise. — 

That  before  this  action  was  brought,  to  wit,  on  the day 

of ,  18 — ,  the  plaintiff  presented  to  this  defendant  a  claim 

for  the  sum  of  $ ,  which  he  claimed  to  be  due  [for  services 

rendered  him  as  —  whatever  they  may  be],  which  said  defend- 
ant refused  to  pay  because  [state  facts  as  to  grounds  of  refusal^ 
as,  for  example,  that  the  claim  was  doubtful,  or,  that  the  de- 
fendant denied  that  plaintiff  had  rendered  services  to  the 
extent  claimed]. 

That  thereupon  it  was  mutually  agreed  between  the  said 
plaintiff  and  defendant  that  they  should  compromise  said 
claim,  and  it  was  thereupon  agreed  that  the  defendant  was  to 
pay  and  the  plaintiff  to  accept  the  sum  of  $ in  full  satis- 
faction thereof,  which  said  sum  the  defendant  so  paid,  and 
the  plaintiff  in  pursuance  of  said  agreement  accepted  the 
same. 

Sec.  147.  Answer  setting  up  compromise  with  creditors. 

Defendant  admits  that  on  the day  of ,  18 — ,  he  was 

indebted  to  the  plaintiff  as  set  forth  in  the  petition,  but  al- 
leges that  on  or  about  the day  of  ,  18—,  being  in 

embarrassed  circumstances,  a  composition  agreement  was  en- 
tered into  between  himself  and  his  creditors,  including  the 

plaintiff,  whereby  he  was  to  pay  a  certain  sum,  to  wit,  $ , 

to  be  distributed  jpT-o  rata  among  said  creditors,  upon  the  pay- 
ment of  which  sum  the  said  plaintiff  and  the  other  creditors 

were  to  release  the  defendant  of  the  remaining per  cent. 

of  the  original  indebtedness ;  that  the  defendant  thereupon 
complied  with  all  the  terras  of  said  agreement,  and  paid  the 
sum  agreed  upon  to  the  plaintiff  and  other  creditors  in  full 
satisfaction  of  the  plaintiff's  deb<-  and  the  several  debts  of 
such  creditors  respectively,  each  covenanting  and  agreeing 
with  the  defendant  to  accejpt  the  sum  in  full  satisfaction  of  all 
claims  and  demands  against  him. 


CHAPTER  12. 


ACCOUNT. 


Sec.  148.  Account  defined  —  What 
may  be  subject  of  ac- 
count. 

149.  Payments  on  account,  how 

treated. 

150.  Effect  of  charges  as  reflect- 

ing on  whom  credit  is 
given. 

151.  Pleading  in  account. 

152.  Ordinary  form  of  petition, 

and  notes  on  evidence. 

153.  Petition  for  goods  sold  and 

money  advanced. 

154.  Petition  for  labor  performed 

and  materials  furnished. 

155.  Petition  on  account  against 

partnership  —  Averment 
as  to  acknowledgment  of 
correctness. 

Petition  for  account  for  at- 
torney's fees. 

For  services  rendered  as 
auctioneer  and  money 
expended. 


156. 


157. 


Sec.  158.  Action  by  assignee  of  ac- 
count and  form  of  plead- 
ing- 

159.  Limitation  of  actions  on. 

160.  Account  stated  —  Defined. 

161.  Account     stated    may    be 

opened. 

162.  Pleading  account  stated. 

163.  Petition  on  account  stated. 

164.  Petition  to  correct  account 

stated. 

165.  Answer  and  cross-petition 

claiming  set-off  for  serv- 
ices rendered. 

166.  Answer  setting  up  statute 

of  limitations. 

167.  Answer  of    settlement   by 

note. 

168.  Answer  setting  up  fraud  or 

mistake  in  account  stated. 

169.  Judgment  on  account. 


Sec.  148.  Account  defined  — What  may  be  subject  of  ac- 
count.—  An  account  is  defined  as  a  detailed  statement  of  the 
mutual  demands  in  the  nature  of  debt  and  credit  between 
parties,  arising  out  of  contract  or  from  a  fiduciary  relation.' 
A  book  account  is  an  entire  thing,  as  much  as  articles  of 
agreement  or  a  bond.  It  is  made  up  of  difl'erent  items  charged 
from  time  to  time  as  articles  may  be  delivered  or  labor  per- 
formed, but  it  is  the  whole  —  all  the  items  charged  constituting 
the  account.  It  is  not  closed  until  the  dealings  between  the 
parties  have  ceased,  or  until  it  is  done  by  some  other  act  by 
them  performed.^    It  is  kept  in  a  regular  book  of  accounts, 


iWhitwell  v.  Willard.  1  Mete.  216.        2  James  v.  Eichmond,  5  O.  337. 


§  148.]  ACCOUNT.  143 

although  it  is  not  essential  that  the  items  be  so  entered,  if 
they  are  such  as  usually  form  the  subject  of  a  book  account.^ 
A  statement  of  a  balance  is  not  an  account,  and  the  debits 
and  credits  must  therefore  be  given.^  The  proper  subjects  or 
items  which  go  to  make  an  account  must  necessarily  depend 
upon  the  facts  in  particular  cases  and  vary  with  the  nature  of 
dealings  between  parties.  It  may  consist  of  articles  properly 
the  subject  of  an  account,  and  also  other  cash  items  not  or- 
dinarily the  subject  of  an  account;^  or  it  may  be  for  work 
and  labor  performed,  and  goods  sold  and  delivered ;  *  or  for 
services  and  money  loaned  or  paid  for  the  use  of  another; '  or 
goods  sold  and  delivered  and  cash  paid  for  shipment,  or  for 
the  value  of  goods  sold  for  another  on  commission;^  or  rent 
of  real  estate,  when  so  considered  by  the  parties,  may  be  the 
subject  of  account.^  Otherwise,  in  the  absence  of  any  inten- 
tion of  the  parties  to  treat  it  as  an  account,  an  action  must 
be  regularl}"  brought  for  use  and  occupation  as  pointed  out 
elsewhere.^  A  check  book  is  not  a  book  account.^  Money  of 
any  considerable  amount  is  not  the  proper  subject  of  a  book 
account ;  ^^  still,  if  in  the  course  of  business  small  sums  are  pass- 
ing between  parties,  these  may  with  propriety  be  charged  on 
book,  and  proved  as  other  items  of  account."  An  account 
made  out  on  a  loose  sheet  of  paper  is  not  a  book  account.^- 
Where  a  claim  or  demand  for  money  arises  upon  a  contract 
and  is  for  something  furnished  or  performed  by  one  party  for 

»  Black  V.  Chesser,  12  O.  S.  621-3.  where  there  are  mutual  dealings  and 

2McWillianis  v.  Allan.  45  Mo.  573,  accounts  between  the  parties,  and  ar- 

3  McKemy  v.  Goodall,  1  O.  C.  C.  23 ;  tides  are  delivered  or  services  ren- 

13  W,  L.  B.  295.  dered  which  are  intended  to  be  ap- 

*  Dallas  V.  Fernan,  25  O.  S.  637.  plied  in  payment  of  rent,  then  the 

5  Averill  Coal  &  Oil  Co.  v.  Verner,  same  may  be  adjusted  in  the  form  of 
22  O.  S.  372 ;  Ralston  v.  Kohl,  30  O.  S.  an  account.  Book  debt  will  not  lie 
92.  for  use  and   occupation.     Beach  v. 

6  Dudley  v.  Geauga  Iron  Co.,  13  O.  Wills,  5  Conn.  493. 

S.  172-3.  *<  See  ch.  53,  Landlord  and  Tenant, 

7Nedvidekv.  Meyer,  46MO.600.    In  sec.  739.     Trial  courts  in  Ohio  have 

Roe  V.  Holbert,  18  S.  W.  Rep.  416  (Tex.,  sustained  demurrer  to  petition  on  an 

1892),  a  suit  was  filed  before  a  justice  account  for  rent, 

on  an  open  account  for  rent.    In  Case  9  Wilson  v,  Goodin,  W.  219. 

V.  Berry,  3  Vt.  332,  it  was  stated  that  'O  Hough  v.  Henk,  8  O.  C.  C.  354 

an  action  would  not  lie  on  account  ^  Cram  v.  Spear,  8  O.  496. 

for  use  and  occupation  of  lands.    But  i-  Kennedy  v,  Ankrum,  Tapp.  8. 


144 


ACCOUNT. 


[§  149. 


another,  but  is  not  founded  upon  a  promissory  note  or  other 
instrument  In  writing,  and  a  statement  of  such  claim  is  made 
out  in  detail  in  writing  and  presented  to  the  debtor,  such 
statement  constitutes  an  account.^ 

By  virtue  of  statute-  a  contract  granting  an  option  to  buy 
or  sell  at  a  future  time,  when  the  commodity  is  not  to  be  de- 
livered, the  party  losing  to  pay  the  difference  in  the  market 
price,  is  a  gambling  contract  or  wager  upon  the  future  price 
of  the  commodity,  and  an  account  cannot  be  founded  upon 
such  transaction.  The  fact  that  one  of  the  parties  assumes  to 
make  the  purchase  or  sale  as  a  commission  merchant  merely 
will  not  alter  the  relation,  and  the  loser  may  recover '  from 
the  winner.*  Nothing  is  more  productive  of  mischievous  re- 
sults than  dealings  in  options  ingrain  or  in  other  commodities, 
and  no  subtle  finesse  of  construction  ought  to  be  adopted  to 
t'efeat  the  penalties  against  such  gambling  transactions.^ 

Sec.  149.  Paymeuts  oii  account,  liow  treated. —  Payments 
upon  a  single  open  current  account  between  parties,  not  shown 
to  have  been  made  in  the  discharge  of  a  particular  item,  are 
always  imputed  to  the  earliest  item  on  the  debit  side  at  the 
time  of  payment,  as  the  law,  upon  equitable  principles,  in- 
fers the  debtor's  intention  to  appropriate  the  payment  in  dis- 
charo'e  of  the  earliest  items  in  the  order  of  their  dates.®  If 
a  general  payment  is  made,  the  creditor  has  the  right  to  elect 
where  to  credit  it,  though  the  debtor  may,  where  he  owes 
several  distinct  accounts,  direct  his  payments  to  either.''  Cred- 
its on  a  book  account  are  payments,  the  balance  appearing 
due  is  only  the  debt ;  ^  so  that  payments  may  extinguish  so 
much  of  the  debt  as  to  reduce  it  within  the  jurisdiction  of  a 
justice  of  the  peace.  A  check  given  in  payment  of  an  ac- 
count will  be  so  considered  wheie  it  cannot  be  collected.^    In 


1  Railway  Co.  v.  Gould,  44  Kan.  68. 

2  Sec.  6934a.  R.  S. 

3  Under  sec.  4270,  R.  S. 

4  Lester  v.  Buell,  49  O.  S.  240. 
oPearce  v.  Buell,  113  111.  228,  239. 

See  Kahn  v.  Walton,  46  O.  S.  195- 
210.  Contracts  to  sell  but  not  to  be 
delivered  are  against  public  policy. 
Irwin  V.  Willar,  110  U.  S.  499;  Cock- 
rell  V.  Thompson,  85  Mo.  510 ;  McCor- 
mick   V.   Jiichols,   19   111.    App.  334; 


Beveredge  v.  Hewitt,  18  HI.  App.  467 ; 
Story  V.  Solomon,  71  N.  Y.  420; 
Johnson  v.  Brown,  2  C.  S.  C.  R  83. 

6  Gaston  v.  Barney,  11  O.  a  511; 
Cain  V.  Dietz.  3  O.  C.  C.  R  612 ;  Clay- 
ton's Case,  1  Merivale,  572. 

■  7  King  V.   Andrews,   30  Ind.  429; 
Rogers  v.  Gumes,  99  Ind.  224 

8  Means  v.  Smith,  Tapp.  60. 

»  Fleig  V.  Sleet,  43  O.  S.  53. 


§§  150,  151.]  ACCOUNT-  145 

pleading  payment  it  will, be  sufficient  to  allege  it  geaerall3'" 
without  stating  the  amount.^ 

Sec.  150.  Effect  of  charges  as  reflecting  on  whom  credit 
is  given. —  The  fact  that  goods  are  charged  upon  books  to 
on«  person  is  not  conclusive  evidence  that  the  credit  is  given 
to  such  person.-  Thus,  if  B.  furnishes  goods  to  C.  on  the  ex- 
press promise  of  A.  to  pay  for  them,  as  if  A.  says  to  him,  let 
C.  have  goods  to  such  an  amount,  and  I  will  pay  you,  and 
the  credit  is  given  to  A.,  in  that  case,  C.  being  under  no  lia- 
bility, there  is  nothing  to  which  the  promise  of  A.  can  be  col- 
lateral, and  A.  being  the  immediate  debtor,  it  is  his  original 
undertaking  and  not  a  promise  to  answer  for  the  debt  of  an- 
other.' Goods  may  be  sold  and  delivered  to  one  person  and 
so  charged  upon  the  books,  yet  not  sold  upon  his  credit, 
but  upon  the  credit  of  a  third  person.  Difficulty  may  arise  in 
such  cases  in  determining  whether  or  not  the  undertaking  of 
such  third  person  is  collateral,  and  therefore  within  the  stat- 
ute of  frauds,  as  being  a  promise  to  pay  the  debt  of  another ; 
or  whether  it  is  an  original  undertaking  and  not  within  the 
statute.  The  test  is,  to  whom  was  the  credit  given?  If  no 
credit  be  given  the  party  receiving  the  goods,  but  is  given 
solely  to  a  third  party  verbally  promising  to  pay  the  same,  it 
becomes  an  original  promise  and  is  not  within  the  statute  of 
frauds.* 

Sec.  151.  Pleading  in  account. —  In  an  action  upon  an  ac- 
count, the  party  pleading  should  set  forth  a  copy  thereof, 
with  all  credits  and  indorsements  thereon,  and  state  in  his 
petition  that  there  is  due  him  a  specified  sum  which  he  claims 
with  interest  from  a  certain  date.-^  If  the  items  of  account 
are  not  numerous  they  may  properly  be  embodied  in  the 
pleading;  but  if  numerous  the  pleading  may  state  the  facts 
constituting  the  cause  of  action,  and  a  copy  of  the  account, 
appropriately  identified,  should  be  attached  as  pointed  out 

1  Johnson  v.  Breedlove,  104  Incl  *  Cahill  v.  Bigelow.  IS  Pick.  369 ; 
521.                                                   ■  Walker  v.  Richards,  supra;  Geary  v. 

2  Swift  V,  Pierce.  13  Allen.  136:  O'Neil.  73  111.  5!)3.  See  Cowdin  v. 
Lyon  V.  Chamberlain,  8  Am.  Law  Gottgetren,  55  N.  Y.  650;  Dean  v. 
Rec.  330;  Walker  v.  Richards.  44  N.  Tallman,  105  Mass.  443. 

H.  388.  5  0.   Code,    sees.    5085,    508G.     See 

3  Elder  V.  Warfield.  7  Harr.  &  John,  ante,  sec.  58;  Whittaker's  Code, 
391.  pp.  126-7;  Bates'  Pidg.  98-104,  193. 

10 


146 


ACCOUNT. 


[§  151. 


elsewhere.^  The  practice  of  attaching  instead  of  embodying 
the  copy,  whether  the  account  be  long  or  short,  is  commend- 
able and  proper.  Even  though  the  account  has  not  been 
entered  in  a  regular  book  of  accounts,  it  is  a  sufficient  compli- 
ance with  the  statute  if  the  items  thereof  be  set  down  in  the 
form  of  an  account  in  the  petition.-  It  is  essential  that  a  copy 
be  specific,  and  distinct  claims  should  not  be  grouped  in  one 
general  statement.''  It  has  been  held  that  if  the  copy  imper- 
fectly describes  goods  or  merchandise,  a  bill  of  particulars  may 
be  demanded  under  the  code.*  The  general  practice,  however, 
is  to  reach  such  matters  by  motion,  as  the  code  provides  that 
when  the  allegations  are  so  indefinite  and  uncertain  that  the 
precise  nature  thereof  is  not  apparent,  the  court  may  require 
the  same  to  be  made  definite  and  certain,^  and  this  is  brought 
about  by  motion.^ 

In  an  action  upon  an  account  for  attorney's  fees  it  is  not 
necessar}'"  to  make  a  statement  of  each  particular  item  of  serv- 
ices rendered,  where  they  refer  to  one  transaction,  and  state 
the  charge  for  each  item  separately.^  If,  however,  the  chargesf 
are  for  services  in  more  than  one  transaction,  then  the  value 
of  the  services  rendered  in  each  should  be  stated.^  A  general 
demurrer  will  not  lie  to  a  petition  which  sets  forth  a  cause  of 
action  upon  an  account  which  contains  items  properly  the  sub- 
ject of  a  book  account,  and  also  other  cash  items  not  ordinarily 
the  subject  of  an  account.  The  proper  practice  in  such  cases 
is  to  demur  to  the  particular  items  objected  to,  or  to  move  to 
strike  them  out,  and  answer  as  to  the  others.  But  where  the 
items  not  ordinarily  the  subject  of  an  account  are  made  so  by 
agreement  or  consent,  a  demurrer  or  motion  cannot  then  be 
filed  to  them  when  sued  upon,  upon  the  ground  that  such 
items  are  not  the  subject  of  book  account."  An  allegation 
stating  a  loan  of  money  to  another  at  his  request,  and  that  it 


1  See  ante,  sec.  57. 

2  Black  V.  Chesser,  13  O.  S.  621-2 ; 
Swan's  P.  &  P.,  p.  183. 

SGoodheart  v.  Powers,   1   Handy, 
559. 

4  Gibson  v.  Farina  Co.,  2  Disn.  499 ; 
R  S.,  sec.  5292. 

5  O.  Code,  sec.  5088. 

6  Trustees  v.   Odlin,   8  O.   S.  293; 


Stoutenberg  v.  Lybrand,  13  O.  S.  228 ; 
Derringer  v.  Pugh,  7  O.  C.  C.  158; 
Calvin  v.  State,  12  O.  S.  60 ;  Byers  v. 
Insurance  Co.,  35  O.  S.  COG. 

'  See  Form,  sec.  156 ;  Derringer  v. 
Pugh,  7  O.  C.  C.  R.  158. 

8  Id. 

9  McKemy  v.  Goodall,  1  0.  C.  C.  R. 
23. 


§  152.]  ACCOUNT.  147 

is  due  and  unpaid,  or  that-the  defendant  is  indebted  to  plaintiff 
therefor,  clearly  states  a  good  cause  of  action,  and  is  beyond 
the  reach  of  a  demurrer  or  motion.^  An  allegation  of  an 
amount  due  upon  an  account,  after  deducting  all  credits,  is  a 
material  one  in  an  action  upon  account,-  and  must  be  contro- 
verted by  answer,  or  judgment  may  be  rendered  without 
proof.' 

In  an  action  upon  an  account  judgment  may  be  entered  at 
any  time  during  the  term  after  the  defendant  is  in  default  for 
answer;*  and  it  is  not  error  to  so  render  judgment  by  default 
without  proof  of  plaintiff's  claim.  It  is  discretionary  with 
the  court  as  to  whether  or  not  it  will  require  proof  to  be  made 
in  such  a  case.^ 

Sec.  152.  Ordiuary  form  of  petition  on  account,  and  notes 
on  eyidence. — 

[Caption.'] 

A.  B,,  plaintiff,  says  there  is  due  to  him  from  C.  D.,  defend- 
ant, on  the  account,  a  copy  whereof  is  hereto  annexed  and 

herewith  filed,  marked  "  Exhibit  A,"  the  sum  of dollars, 

which  he  claims  with  interest  thereon  from  the day  of 

,  18 — ,  for  which  with  costs  he  prays  judgment. 

>[OTE. — This  is  substantially  the  old  code  commissioners  form,  and  the 
one  used  by  many  practitioners,  and  a  sufficient  statement  of  facts,  and  the 
most  convenient  when  the  account  is  lengthy. 

Another  is: 

The  above-named  plaintiff, ,  says  that  the  above- 
named  defendant  is  justly  indebted  to  him  in  the  sum  of 

dollars,  which  he  claims  on  an  account  of  which  the  following 
is  a  copy,  together  with  all  the  credits  and  indorsements 
thereon:  [Oopij  of  account.] 

Wherefore  this  plaintiff  demands  judgment  against  the  said 

defendant  for  the  said  sum  of dollars,  with  interest  from 

the day  of ,  IS — ,  and  costs. 

Note.— Cincinnati  v.  Cameron,  33  O.  S.  336,  See  chapter  on  Petition, 
sees.  57, 58.  Questions  of  evidence  are  eliminated  from  this  work,  but  for  con- 
venience of  reference  the  following  authorities  are  here  given  :  An  account 
book  of  original  entries  is  admissible  in  evidence  in  favor  of  the  party  by 
whom  it  was  kept,  when  shown  to  be  accurately  kept;  or  that  it  was  kept 
in  the  usual  course  of  business.  Anchor  Milling  Co.  v.  Walsh,  103  Mo.  277; 
18  S.  W.  Rep.  904  (1892).  And  as  part  of  the  res  gestae  where  the  book-keeper 
testifies  that  they  were  correctly  kept.  Muckle  v.  Rennie,  16  N.  Y.  S.  208.  Or 
they  may  be  used  to  refresh  one's  memory.    Lester  v.  Thompson,  91  Mich.  245 ; 

1  McKemy  v.  Goodall,  1  O.  C.  C.  27 ;  3  Lyons  v.  Fidelity  Lodge  L  O.  F., 
Swan's  P.  &  P.  183.  2  W.  L.  B.  97. 

2  Dallas  V.  Furneau,  25  O.  S.  638.  ^  q.  Code,  sec.  5133. 

6  Dallas  V.  Furneau.  25  O.  S.  635. 


148  ACCOUNT.  [§§  153,  loi. 

51  N.  "W.  Rep.  893  (1892).  They  will  serve  the  purpose  of  evidence  of  the  non- 
payment of  a  claim  where  no  credit  appears  thereon.  Union  School  Furo. 
Co.  V.  Mason,  52  N.  W.  Rep.  671  (S.  D.,  1892'.  They  cannot  be  received  to 
negative  the  payment  of  cash  items.  Schwarze  v.  Roesler,  40  111.  App.  474. 
Charges  of  goods  to  a  person  to  whom  they  were  delivered  are  not  conclu- 
sive evidence  that  they  were  furnished  upon  the  credit  of  another  who 
promised  orally  to  pay  for  them.  Mackey  v.  Smith,  21  Ore.  ^9S:  28  Pac. 
Eep.  974.  An  account  book  is  not  admissible  in  evidence  unless  a  prelimi- 
nary foundation  has  been  laid  for  its  admission  either  as  a  book  of  original 
entries  or  as  part  of  the  res  gestae.  Watrous  v.  Cunningham,  71  Cal.  30. 
A  merchant's  account  books  are  not  evidence  in  his  favor  as  to  rt-ceipt  of 
money  by  him.     Oberg  v.  Breen,  50  N.  J.  L.  145 :  12  Atl.  Rep.  20-3. 

See.  153.  Petition  for  goods  sold  and  money  advanced. — 

Plaintiff  says  there  is  due  him  from  defendant  for  goods 
and  wares  sold  to  said  defendant  and  foi-  money  advanced  to 

him,  a  balance  on  account,  the  sum  of dollars,  which  ho 

claims  with  interest  from .  of  which  said  account  the  fol- 
lowing is  a  copy,  with  all  credits  thereon:  [Copy.'] 

Wherefdre  plaintiff  asks  judgment,  etc.,  as  in  sec.  152. 

Note. —  From  Weiss  v.  Emmitt.  supreme  court,  unreported.  As  to  neces- 
sary averments,  see  Kerstetter  v.  Ravmond,  10  Ind.  199 :  Abadie  v.  Carrillo, 
32  Cal.  233:  Magee  v.  Kast.  49  Cal  141;  Smith  v.  Holmes,  19  N.  Y.  271; 
Roberts  v.  Treadwell.  50  Cal.  520 ;  Wilkinson  v.  Moore,  20  Kan.  538. 

See.  154.  For  labor  performed  and  materials  furnished. 

Plaintiff  says  that  on  the day  of  ,  18 — ,  the  de- 
fendants were  indebted  to  him  for  labor  performed  and  ma- 
terials furnished  in  the  manufacture  of  [desci^ihe  goo'l-i],  of  the 
value  of  $ — — ,  and  one  [describe  other  goods'],  of  the  value  of 
$ ,  which,  on  or  about  the day  of ,  IS — ,  the  de- 
fendants had  ordered  the  plaintiff  to  manufacture  for  them, 
and  which  price  so  mentioned  the  defendants  had  agreed  to 
pay  plaintiff  therefor:  yet  the  said  defendants,  though  often 

requested,  have  not  paid  the  plaintiff  said  sum  of  $ ,  nor 

any  part  thereof. 

Second  cause  of  action:   [Formal  averments.] 

Plaintiff  further  says  that  on  the day  of ,  18 — ,  the 

defendants  were  and  still  are  indebted  to  the  plaintiff  in  the 

sum  of  S for  work  and  labor  by  the  said  ;)laintiff  before 

that  time  performed  and  bestowed  in  the  manufacture  of 
[describe  goods]  for  the  said  defendants,  and  at  their  special 
instance  and  request,  and  also  for  divers  materials  and  other 
necessary  things  by  the  said  plaintiff  befoi'e  that  time  found 
and  provided  in  and  about  that  work  and  labor  for  the  said 
defendants,  and  at  their  like  request,  and  which  said  sum  of 
money  the  said  })laintiff  avers  was  then  and  still  is  due  and 
payable ;  yet  the  said  defendants,  though  often  requested,  have 
not  paid  said  sum  of  money  nor  any  part  thereof. 

Plaintiff  further  says  that  a  detailed  statement  of  the  labor 
so  performed  and  materials  so  furnished  by  the  plaintiff  is 
hereto  attached  [or  copied.,  if  so  desired,  as  in  ante,  sees.  151^ 


§§  155,  156.]  ACCOUNT.  149 

-?-5,?],  and  that  the  said  labor  and  materials  are  well  worth  the 
several  amounts  claimed,  herein  and  therein  charged. 

AVherefore  plaintiff  prays  judgment  against  defendants  for 

said  sura  of  $ ,  together  with  interest  thereon  from  the 

day  of  ,  IS — ,• 

Note. —  See  another  Form  approved  in  Farron  t.  Sherwood,  17  N.  Y.  227. 
The  code  has  not  changed  the  rules  of  pleading  as  to  right  of  a  party  who 
has  performed  a  special  contract.  He  may  also  sue  upon  implied  contract, 
and  is  not  bound  to  declare  on  special  contract.  See,  also,  Wilkins  v.  Stidger, 
22  Cal.  234.  See  as  to  statement  of  facts  iu  such  cases,  Busta  v.  Wardall,  52 
N.  W.  Rep.  418  (S.  D..  1892j. 

Sec.  155.  Petition  on  account  against  partnership  — 
Averment  as  to  acknowledgment  of  correctness. — 

For  a  cause  of  action  herein  plaintiff  says  that  during  the 
period  embraced  in  the  account  hereinafter  set  forth  [or,  a 
copy  of  which  is  hereto  attached,  marked  Exhibit  A]  said  de- 
fendants    and  were   partners  as  , 

doing  business  as in  the  state  of  :  that  during  the 

existence  of  said  partnership  there  were  numerous  commercial 
transactions,  a  true  copy  of  the  account  of  which  transactions 

between  the  plaintiff  and  said  defendants, and 

,  is  as  follows:  [copy  of  account],  [or,  is  attached];  that 

there  is  now  due  and  owing  to  said  plaintiff  from  said  defend- 
ants an  unpaid  balance  on  said  account  of dollars,  which 

he  claims  with  interest  from ,  18 — . 

Plaintiff  further  says  that  on  the day  of  ,  IS — , 

the  defendants  above  named  acknowledged  the  correctness  of 
the  account  attached  hereto,  and  promised  to  pay  the  same 
by  an  instrument  in  writing. 

Wherefore  plaintiff  prays  judgment,  etc. 

Note. —  From  Kerper  v.  Wood,  48  O.  S.  613.  See  rules  stated  in  sections 
r>7,  58,  and  151,  ante,  as  to  pleading  by  copj-.  The  record  of  this  case  dis- 
closes the  fact  that  tl>e  plaintiff  in  the  trial  court  filed  an  amended  petition 
setting  out  the  fact  tliat  the  defendants  acknowledged  the  correctness  of 
the  account  sued  upon,  and  promised  to  pay  the  same  bj-  a  promissory 
note,  a  copy  of  whicli  was  embraced  in  tiie  amended  petition.  Tiiis  was  on 
motion  stricken  from  the  tiles  and  leave  granted  to  file  an  amendment  to 
the  original  petition  upon  the  condition  that  the  cause  of  action  should  not 
be  changed.  A  plaintiff  cannot  amend  a  petition  on  account  by  setting 
forth  a  note  given  in  settlement  thereof.  The  allegation  given  in  the  fore- 
going form  was  allowed,  however,  in  the  case  above  cited. 

Sec.  156.  Petition  on  account  for  attorney's  fees. — 

Plaintiffs  say  there  is  due  them  from  the  defendant  the  sum 

of dollars  for  professional  services  rendered  by  them  as 

attorneys  at  law  to  him.  at  his  request,   between and 

,  •'  in  examining  records  and  the  law,  giving  an  opin- 
ion and  furnishing  an   abstract  of  the  defects  in   a  certain 

tax  title  and  tax  deed  claimed  and  held  by  one to 

the  real  estate  of  the  defendant,  and  counseling  and  advisii  ,, 


150  ACCOUNT.  [§§  157,  158. 

him  in  relation  thereto,"  ^  or  for  professional  services  in  learn- 
ing and  preparing  tlie  facts,  ascertaining  and  preparing  the 

law  for,  prosecuting  and  trying  a  case  in  the  court  of 

entitled [give  action'] ;  and  preparing  for  and  arguing  a 

motion  for  a  new  trial  in  said  court,  and  preparing  for  and 

arguing  the  case  in  the court  of count}^  and  other 

work  done  by  them  in  said  cause  in  the  line  of  their  duty  as 
attorneys."^ 

Wherefore,  etc. 

Sec.  157.  For  services  rendered  as  auctioneer  and  money 
expended. — 

The  plaintiff  states  that  there  is  justly  due  to  him  from  the 
defendant  the  sum  of  dollars,  which  he  claims  with  in- 
terest from  the day  of ,  IS — ,  at  the  rate  of per 

cent,  per  annum,  on  a  balance  of  account,  a  copy  of  which  is 
as  follows  [or,  is  hereto  annexed,  according  to  sec.  57,  ante\ 
for  services  rendered  as  auctioneer,  and  for  money  paid  out  and 
expended  by  the  said  plaintiff  for  the  said  defendant  at  his 
special  instance  and  request,  and  which  said  sum  of  money  the 

said  plaintiff  avers  was  due  and  payable  on  the day  of 

,  18 — ,  and  yet  the  said  defendanl,  though  often  requested. 

has  not  paid  said  sum  of  money,  nor  any  part  thereof. 

Wherefore  the  plaintiff  prays  judgment,  etc. 

Note. —  Ralston  v.  Kohl,  30  O.  S.  92.  Where  services  have  been  rendered 
under  a  special  contract  which  has  been  wrongfully  terminated,  recovery- 
may  be  had  as  upon  an  implied  quantum  meruit.  30  0.  S.  92.  Licensed 
auctioneers  must  render  quarterly  accounts  of  all  property  sold  by  them, 
the  amounts  realized  from  such  sales  and  for  whom  they  were  made,  verify 
the  same,  and  file  with  county  treasurer  and  a  duplicate  copy  to  the  county 
auditor.     R.  S.,  sees.  4231-32. 

Sec.  158.  Action  toy  assignee  of  account. —  The  code'  pro- 
vides that  actions  must  be  brought  in  the  name  of  the  real 
party  in  interest.*  The  assignee  of  an  account  is  a  legal 
holder,  his  title  being  a  legal,  not  an  equitable  one,  as  before 
the  code.  The  incidents  of  inviolability  which  attach  to  com- 
mercial paper  do  not  affect  an  assignee  of  accounts.  The 
debtor  may,  however,  dispute  the  indebtedness  and  also  the 
fact  of  validitv  of  the  assignment.' 


1  Derringer  V.  Pugh.  7  O.  C.  C.  R  value  of  services  upon  an  express 
158.  contract,  however.   See  "Contracts." 

2  Holmes  v.  Holland,  29  W.  L.  B.  sr.  s.,  sec.  4993. 

115.    The  petition  in  the  case  just  *See,  also,  sec.  8,  ante. 

cited  was  for  the  recovery  of  the  5  Allen  v.  Miller,  11  O.  S.  374-7. 


§  159.]  ACCOUNT.  151 

While  it  has  been  said  that  the  rulino:  in  Sarfjent  v.  Rail- 
road  Co.,^  that  extrinsic  facts  showing  title  to  a  note  need  not 
be  expressly  averred,  is  broad  enough  to  cover  account  also,' 
it  is  now  considered  better  practice  to  include  an  averment  as 
to  the  assignment,  as  follows : 

That  on  the day  of ,  IS — ,  for  a  valuable  consid- 
eration, said sold,  transferred  and  assigned  said  ac- 
count to  this  plaintiff.^ 

Sec.  159.  Limitation  of  action  on. —  An  action  upon  ac- 
count must  be  brought  within  six  years.*  The  right  of  action 
accrues  and  the  statute,  therefore,  begins  to  run  on  each  item 
from  the  day  of  its  proper  date  —  that  is,  from  the  day  of  the 
delivery  of  the  article  or  work  done  or  money  furnished;  and 
the  action  will  be  barred  in  six  years  unless  it  is  taken  out  of 
the  statute  on  some  special  ground.  Part  payment,  or  a 
written  acknowledgment  of  liability,  or  a  promise  to  pay  the 
same  in  writing,  will  take  it  out  of  the  statute.^  In  order  that 
items  of  credit  appearing  upon  an  account,  such  as:  "1870. 
By  one  churn,  S7."  "  1870,  July  5th.  By  his  account  rendered, 
819.65."  —  dated  long  after  the  account  is  barred,  shall  be 
available  against  the  statute,  it  must  appear  that  there  was  an 
agreement  by  the  parties  that  such  credits  were  to  be  treated 
as  part  payment  thereof.^  Items  of  credit  in  an  account  book 
of  the  deceased,  made  after  the  statute  had  barred  an  action, 
constitute  no  evidence  that  it  was  the  intention  of  the  parties 
that  the  articles  should  be  applied  on  the  barred  account.'  It 
is  the  act  of  payment  on  account  of  the  debt  which  takes  the 
case  out  of  the  statute.^  A  defendant  pleading  the  statute  in 
an  action  on  a  running  account  may  introduce  in  evidence 
separate  bills  and  receipts  given  after  the  last  item  of  account 
sued  on,  as  tending  to  prove  that  neither  party  recognized  the 
payment  as  an  admission  of  the  correctness  of  any  former 
account.^ 

1 33  O.  S.  449.  424-8 :  Waugh  v.  Cope,  6  M.  &  W. 

2  Bates'  Pldg.,  p.  254.  824. 

'^  Bay  V.  Saulspaugh,  74  Ind.  397.  "  Kaufman  v.  Broughton,  31  O.  S. 

*  R.  S.,  sec.  4981.  429. 

*  R.  S.,  sec.  4992 ;  Courson's  Ex'rs  8  Blanchard  v.  Blanchard,  123  Mass. 
V.  Courson,  19  O.  S.  454.  5')2. 

6  Kaufman  v.  Brouglitou,  31  O.  S.        »  Schock  v.  Bieler,  5  O.  C.  C.  R.  49. 


152 .  ACCOUNT.  [§  160. 

Sec.  160.  Account  stated  defined. —  An  account  stated  is 
merely  the  admission  of  a  balance  due  from  one  party  to 
another,  or  an  account  ^vhich  has  been  examined  by  the  par- 
ties thereto  and  all  items  found  to  be  true,  and  a  just  and 
true  balance  struck,  and  a  mutual  assent  or  agreement  thereto.^ 
The  mutual  agreement  to  the  balance  may  be  implied  from 
the  retention  of  an  account  rendered  for  a  reasonable  time 
without  any  objections  thereto.^  What  is  a  reasonable  time 
is  said  to  be  a  question  of  law,  but  must  necessarily  depend 
upon  the  circumstances  of  each  case,"  and  is  open  to  explana. 
tion.^  Assent  may  be  implied  from  circumstances,^  but  there 
must  be  proof  either  express  or  implied.^  It  is  not  necessary 
that  the  parties  should  sign  the  account.' 

A  partial  accounting  without  striking  a  balance  is  not  an 
account  stated.^  If  a  debtor  writes  upon  an  account  which 
has  been  rendered  him,  and  which  he  has  retained,  a  word 
meaning  "  balance,"  subsequent  payment  of  a  portion  thereof 
and  a  failure  to  dispute  any  item  will  make  it  an  account 
stated ;  ^  and  so  will  the  retention  of  an  account  rendered  at 
the  time  of  the  delivery  of  goods,  or  at  the  end  of  each 
month,  with  a  statement  of  a  balance,  without  objection;^"' 
or  a  verbal  acknowledgment  of  a  monthly  account  rendered 
and  the  giving  of  a  written  acknowledgment  of  the  debt.*'^ 
Where  an  objection  is  made  to  an  item  in  an  account  at  the 
time  of  its  rendition,  and  the  balance  so  rendered  is  carried 
into  subsequent  accounts,  payment  of  such  balance  under  an 
agreement  that  the  disputed  item  should  remain  open,  the 

1  Uuiou   Bank  v.  Knapp,  15  Am.        *  Guernsey  v.   Rexford,  63  N.   Y. 

Dec.  181 ;  Tassey  v.  Church,  39  Am.  631. 

Dec.  65;  Langdon  v.  Roane,  41  Am.        SMcCall  v.  Nave,  52  Miss.  494. 
Dec.  60 ;  Anding  v.  Levy,  57  Miss.  51 ;        ^  Stenton  v.  Jerome,  54  N.  Y.  480. 
34  Am.  Rep.  435.  "Lockwood  v.   Thorne,    11   N.   Y. 

^  Wiggins   V.  Burkham,   10  Wall.  170 :  62  Am.  Dec.  81 ;  Brown  v.  Van 

129 ;  Quincey  v.  White.  63  N.  Y.  370 ;  Dyke,  55  Am.  Dec.  250. 
Bobson  V.  Bohm,  22  Minn.  410 ;  Lang-        ^  Bouslog  v.  Garrett,  39  Ind.  338. 
(Ion    V.    Roane,    41    Am.    Dec..  60;        9  Holler  v.  Apa,  17  N.  Y.  Supp.  504. 
Stenton  v.  Jerome,  54  N.  Y.  Super.       lORobbinsv.  Downey,  18N.  Y.  Supp. 

485 ;  Freeman  v.  Howell,  50  Am.  Dec.  100. 

561 ;  Lockwood  v.  Thorne,  UN.  Y.       "  Mackay  v.  Kahn,  17  N.  Y.  Supp. 

170;62  Am.  Dec.  81.  50a 

s  Wiggins  V.  Burkham,  supra. 


^§  161, 162.]  ACCOUNT.  153 

accounts  so  rendered  are  not  regarded  as  accounts  stated  as 
to  the  disputed  item,  and  may  be  corrected  after  settlement.^ 
Balancing  an  account  without  the  consent  of  both  parties  will 
not  constitute  an  account  stated.-  A  mere  proposal  to  extend 
the  time  of  payment,  not  acted  upon,  will  not  change  the  char- 
acter of  an  account  stated.^ 

Sec.  161.  Account  stated  may  be  opened. —  A  mistake, 
fraud,  omission  or  inaccuracy  will  deprive  an  account  stated 
of  its  conclusive  character  and  render  it  subject  to  a  re-exam- 
ination;* but  the  right  of  a  party  to  so  open  the  account 
may  be  lost  by  his  own  silence  or  acquiescence.'  When  there 
is  clear  and  convincing  proof  of  fraud  or  concealment,  courts 
vvill  open  an  account  barred  by  the  statute  of  limitations,  but 
these  matters  must  be  specificall}^  alleged  in  the  pleadings,^ 
A  party  alleging  a  mistake  in  an  account  must  point  out  the 
error  of  which  he  complains,"  and  must  furnish  the  data 
whereby  it  may  be  corrected.^  An  account  stated  cannot  be 
opened  for  a  mistake  in  law.^ 

Sec.  162.  Pleading  account  stated. —  In  pleading  an  ac- 
count stated  the  plaintiff  must  aver  that  the  same  has  been 
balanced  with  the  assent  of  the  parties,^"  but  it  is  not  necessary 
to  allege  a  promise  to  pay."  An  account  is  not  available  as  an 
account  stated  unless  it  is  specially  pleaded  as  such.^^ 

1  Dudley  v.  Iron  Company,  13  O.  S.  170;  62  Am.  Dec.  81 ;  Wilde  v.  Jen- 

168.  kins,  4  Paige  Ch.  481. 

2Nostrand  V.  Ditmis,  127N.  Y.355;  'Zent  v.  Watts,  1   N.  Y.  S.  702; 

88  N.  E.  Rep.  27.  Barker  v.  Hoflf,  52  How.   Pr.    382 ; 

3  Laweon    v.    Douglas,    17    N.  Y.  Warner    v.    Myrick,   16  Minn.    91 ; 

Supp.  4.  Mayo  v.  Bosson,  6  O.  525. 

*  Sampson  v.  Freedman,  102  N.  Y.  ^Chubbuck  v.  Varnum,  42  N.  Y. 

699 ;  Scioto  Co.   v.  Gerky,  W.  493 ;  432 ;  Insurance  Co.  v.  Carpenter,  49 

Fowler  v.  Pratt,  W.  206 ;  Hawley  v.  N.  Y.  668. 

Harran,  79  Wis.  379;  48  N.  W.  Rep.  » Commissioners  v.  Gherky,  W.  493. 

676 ;  Fleischner  v.  Kubli,  20  Oreg.  328;  ^^  Volkening  v.  De  Graaf,  81  N. Y.  268. 

25  Pac.  Rep.  1086 ;  Frankel  v.  Mather,  ii  Heinrick  v.    Englund,   34  Minn. 

58  Hun,  543;  Farnham  v.  Brooks,  9  395;  s.  C,  26  N.  W.  Rep.  122. 

Pick.  212 ;  Goodwin  v.  U.  S.  Ins.  Co.,  12  Oregon  R.  &  Nav.  Co.  v.  Swin- 

24  Conn.  591 ;  Roberts  v.  Totten,  13  burne.  22  Oreg.  574 :  30  Pac.  Rep.  322, 

Ark.  609.  323  (1892):  Bump  v.  Cooper,  10  Oreg. 

» Cross   V.   Savings   Bank,  66  Cal.  81;  26  Pac.  Rep.  848  (1891);  McCor- 

462.  mick,  etc.  Co.  v.  Wilson,  39  :\Iinn.  467 ; 

•Lockwood  T.  Thome,   11   N.  Y.  40  N.  W.  Rep.  571  (1888). 


154  ACCOUNT.  [§§  163-165. 

Sec.  163.  Petition  on  acconnt  stated. — 

Plaintiff  says  that  on  the day  of ,  18 — ,  an  acconnt 

was  stated  between  the  plaintiff  and  defendant,  upon  which 
accounting  the  said  defendant  was  found  to  be  indebted  to 

the  plaintiff  in  the  sum  of dollars  (of  which  amount  said 

defendant  paid  the  sum  of dollars,  and  there  is  now  due 

plaintiff  from  the  said  defendant  the  sum  of dollars  with 

interest  from  the day  of ,  18 — ).     [Or,  that  defendant 

has  not  paid  the  said  amount  so  found  due  or  any  part  thereof, 
and  there  is  due  plaintiff  from  the  said  defendant  the  sum  of 

dollars,  with  interest  at uer  cent,  from  the day 

of ,  18—.] 

[rrat/er.] 

Sec.  164.  Petition  to  correct  account  stated  and  for  judg- 
ment on  account  as  corrected. — 

[Cajption.'] 

Plaintiff  says  that  on  the day  of ,  18 — ,  an  account 

was  stated  between  the  plaintiff  and  defendant,  upon  which 
there  was  found  to  be  due  from  the  defendant  to  the  plaintiff 

the  sum  of dollars,  which  sum  the  defendant  agreed  to 

pay  the  plaintiff. 

That  after  the  adjustment  and  settlement  of  said  account 
plaintiff  discovered  that  it  was  erroneously  stated  in  this,  to 
wit:  [Specif (/ e/Tor  claimed.]     Plaintiff  did  not  discover  said 

error  until  the day  of  ,  IS — ,  when  he  immediately 

demanded  a  restatement  of  said  account  and  requested  defend- 
ant to  correct  the  same,  which  he  refused  to  do. 

That  the  account  should  be  corrected  as  follows:  [state 
how'],  and  the  balance  due  thereon  to  plaintiff  should  be  the 

sum  of  $ instead  of  $ ,  as  shown  by  said  account  as  it 

is  now  adjusted. 

Wherefore  the  plaintiff  prays  that  the  said  error  may  be 
corrected  as  herein  set  forth,  and  that  he  may  have  judgment 

against  the  defendant  for  the  sum  of  § with  interest 

from . 

Sec.  165.  Answer  and  cross-petition  claiming  set-off  for 
services  rendered. — 

[Cajptio7i.] 

The  said  defendant,  for  his  defense  and  by  way  of  set-off, 

says:   That  in  ,  18 — ,  the  said  plaintiff   employed  the 

defendant  to  act  and  serve  as  [state  services]  for  plaintiff  in 

and  about  said  plaintiff's  divers  business  places  in  the  , 

and  county  of ;  that  for  such  services  so  to  be  rendered 

the  plaintiiff  agreed  with  the  defendant  to  pay  him  [state 


§§  166,  167.]  ACCOUNT.  155 

amount],  that  he  should  be  so  engaged  in  said  service;  that 
by  the  terras  of  said  agreement  between  said  plaintifif  and  de- 
fendant, said  defendant  was  to  devote  to  said  service  of  said 
plaintiff  [state  time],  and  at  the  end  of  said  service  said  plaint- 
iff was  to  settle  with  and  pay  the  defendant  for  said  services 
according  to  the  terms  of  said  agreement  and  employment; 
that  in  pursuance  of  said  agreement  and  arrangement  the  de- 
fendant, on  the day  of ,  18 — ,  entered  on  the  per- 
formance of  said  service  for  said  plaintiff,  and  duly  performed 
all  the  terms  of  said  agreement  and  engagement  on  his  part, 
and  served  said  plaintiff,  as  such  [r'ej^eat  service],  from  that  day, 

to  wit, ,  until  and  including  the day  of ,  18 — , 

making  in  all  [time  employed] ;  that  at  the  end  of  said  service 
the  defendant  requested  the  plaintiff  to  settle  with  and  pay 
him  for  said  services  according  to  the  terms  of  said  contract, 
but  said  plaintiff  refused  and  still  refuses  to  pay  him  there- 
for, or  for  any  part  thereof;  that  by  reason  of  the  premises 
there  is  due  and  owing  to  said  defendant,  from  said  plaintiff, 

the  sum  of  $ ,  with  interest  thereon  from  the day  of 

,  18 — ,  which  he  asks  may  be  set  off  against  said  claiiii  of 

said  plaintiff,  and  that  he  may  have  judgment  against  plaint- 
iff for  balance. 

Sec.  1 66.  Answer  setting  up  statute  of  limitations. — 

[Caption,] 

The  alleged  cause  of  action  set  forth  in  said  petition  did 
not  accrue  within  six  years  next  preceding  the  date  of  filing 
said  petition,  and  the  action  is  therefore  barred  by  lapse  of 
time. 

Sec.  167.  Answer  of  settlement  by  note. — 

[Caption.'] 

[Formal  opening.]  That  before  the  bringing  of  this  action 
the  plaintiff  and  defendant  had  a  full  and  final  settlement  of 
all  their  accounts,  including  the  items  of  account  sued  on 
herein,  and  it  was  found  that  defendant  was  indebted  to.  the 

plaintiff  in  the  sum  of  dollars,  for  Avhich  sum  defendant 

then  and  there  executed  to  the  plaintiff  his  promissory  note, 

payable  days  after  the day  of  ,  18 — ,  in  full 

satisfaction  of  the  amount  so  found  to  be  due  him. 

[Prayer.] 

Note. —  A  note  given  by  a  member  of  a  firm  after  dissolution  in  settle- 
meut  of  a  balance  on  an  account  due  from  a  partnership  prior  to  dissolu- 
tion is  not  such  a  promise  as  the  Code,  section  4992,  provides  may  take  a 
demand  on  account  out  of  the  statute  of  limitations,  as  to  the  other  members, 
unless  there  was  an  express  authority  to  execute  the  note.  Kerper  v.  Wood, 
48  O.  S.  613.  A  promise  inferred  from  a  payment  cannot  have  greater  ef- 
fect than  an  express  promise.  Shoemaker  v.  Benedict,  11  N.  Y.  176,  18r).  A 
partial  payment  by  one  of  several  makers  of  a  note  will  not  prevent  the 
statute  from  running.     Hance  v.  1  lair,  25  O.  S.  349. 


156  ACCOUNT.  [§§  168,  169. 

Sec.  168.  Answer  setting  up  fraud  or  mistake  in  account 
stated.— 

\_Caption.'] 

Defendant  says  that  he  admits  that  he  had  an  accounting 

with  said  plaintiff  on  the day  of ,  18 — ,  and  that  the 

sum  of dollars  was  found  to  be  due  said  plaintiff  upon 

said  account  •  but  says  that  at  the  time  of  said  accounting 
there  were  certain  errors  and  false  charges,  of  which  this 
defendant  was  wholly  ignorant,  by  mistake  and  oversight, 
made  in  said  account  in  the  following  particulars :  He  is  en- 
titled to  the  following  credits,  which  were  wholly  omitted 
from  said  account :  \_State  them.'] 

That  the  following  items  of  said  account  were  wrongly  and 
fraudulently  charged  against  defendant  by  the  plaintiff :  [_State 
them,  showing  the  errors  and  facts  evidencing  frau(hdent  char- 
acter of  charges.'] 

That  on  the day  of ,  18 — ,  defendant  notified  the 

plaintiff  thereof,  and  requested  that  the  same  be  corrected 
and  the  account  restated,  which  plaintiff  refused. 

Sec.  169.  Judgment  on  account.— In  an  action  upon  an 
account,  judgment  may  be  entered  at  any  time  during  the 
term  after  the  defendant  is  in  default  for  answer,  unless  the 
court  gives  further  time  to  answer.*  It  is  not  reversible  error 
to  render  judgment  on  default,  in  an  action  on  account,  with- 
out proof  of  plaintiff's  claim.^ 

1 R.  S.,  sec.  5133.  '  See  ante,  sec.  87 ;  Dallas  v.  Fer- 

neau,  25  O.  S.  635. 


CHAPTER  13. 

ACCOUNTING. 


Sec.  1-70.  Accounting— When  and  by 
whom  invoked. 

171.  Parties. 

172.  Some  rules  of  pleading  in 

accounting. 


Sec.  173.  Petition  against  agent  for 
accounting. 
174.  Petition  for  an  accounting 
between  partners. 


Sec.  170.  Accounting  — When  and  by  whom  invoked.— 

This  is  an  equitable  remedy  which  is  resorted  to  where  there 
have  been  mutual  dealings  between  parties  and  a  controversy 
has  arisen  between  them  in  reference  to  accounts  which  are 
of  such  a  complicated  nature  that  courts  of  law  cannot  afford 
relief.  Under  the  code,  however,  where  a  petition  sets  forth 
-an  account  containing  numerous  items  and  payments,  which 
is  controverted  by  answer,  the  parties  may  have  both  an 
equitable  and  legal  remedy,  according  to  the  nature  of  the 
■case,  and  the  court  may  order  a  reference  to  a  master  to  take 
and  state  the  account  without  the  consent  of  either  party.^ 

A  holder  of  stock  in  pledge  as  collateral  security  is  never- 
theless required  to  account  to  the  owner  thereof,  or  to  the 
■cestui  que  trusty  for  any  surplus  remaining  after  the  payment 
of  the  debt; 2  and  this  rule  is  applicable  to  other  pledges.' 
Where  complications  or  difficulties  arise  between  parties  sus- 
taining a  fiduciary  relation,  an  accounting  may  be  compelled, 
as  between  factor  and  principal,*  or  administrators,  executors 
and  creditors,  legatees  or  next  of  km  of  a  deceased  person,^ 
or  between  guardian  and  ward.'^ 

The  commission  of  joint  executors  of  an  estate  may  be  ad- 

•  Stanley  v.  Cincinnati.  1  Ciu.  S.  C.  <  Roots  v.  Nye,  supra. 

R  69 ;  Roots  v.  Nye,  2  Handy.  229 ;  3  Cram  v.  Green,  6  O.  430 ;  Wood 

Johnson  v.  Wallace,  7  O.  S.  62.     As  v.   Brown,  34  N.  Y.  337 ;   Petree  v. 

to  method  of  trial,  see  Black  v.  Boyd,  Lansing,  66  Barb.  357. 

50O.  S.  46;  Chapman  v.  Lee,  45  O.  S.  «  Armstrong   r.    Miller,  6   O.  119; 

356.  Davies  v.  Lowrey,  15  0.  655  ;  Hendry 

2  Lee  V.  Bank,  2  Cin.  S.  C.  R.  300.  v.  Clardy,  B  Fla.  77 

» Kingsbury  v.  Phelps,  W.  370. 


158  ACCOUNTING.  [§  170. 

justed  by  a  petition  for  an  accounting  where  one  has  received 
all  of  it;*  and  if  an  administrator  purchases  land  at  his  own 
sale  he  must  account  to  the  heirs  for  the  property  and  its 
price,  or  a  vendee  to  whom  such  administrator  has  sold  it 
must  also  account  to  the  heirs  for  its  value  at  the  time  of  its 
original  purchase.^ 

A  stockholder  may,  in  a  suit  in  equity  against  a  corpora- 
tion, join  other  stockholders  and  compel  an  accounting  to  be 
taken  of  all  stocks  and  funds ;  ^  or  an  assignee  of  a  mortgage 
debt,  who  has  taken  from  the  mortgagee  a  deed  for  part  of 
the  property  as  part  payment  of  the  mortgage  debt,  may  be 
compelled  to  account  to  the  assignor  for  its  full  value  if  nec- 
essary to  the  payment  of  the  mortgage.* 

A  mortgagee  in  possession  of  premises  covered  by  the  mort- 
gage is  regarded  as  the  steward  or  bailiff,  as  it  were,  of  the 
mortgagor,  and,  as  such,  accountable  to  him  or  his  assigns,  or 
mortgagee,  for  the  profits ;  ^  but  a  mortgagee  who  has  right- 
fully recovered  possession  of  property  by  proper  proceedings 
cannot  be  charged  in  an  action  against  him  for  an  accounting 
with  the  full  value  of  the  property  at  the  time  it  was  replevied 
by  him ;  and  if  he  has  sold  it  he  should  be  charged  only  with 
what  he  received,  if  the  sale  was  fair  and  reasonable."  A 
grantee  of  a  mortgage  holding  the  right  of  redemption  wha 
is  not  made  a  party  to  foreclosure  proceedings  may  compel  a 
purchaser  of  the  premises  who  thereby  claims  possession  to- 
account  for  rents  and  profits.' 

The  state  may  authorize  a  suit  to  be  brought  against  it,  by 
an  act  of  the  legislature,  for  the  adjustment  of  a  claim  which 
an  individual  has  against  it.^  Members  of  an  association  who 
have  abandoned  the  enterprise  without  notice  may  be  com- 
pelled to  render  an  account  to  such  association  of  their  earn- 
ings and  profits  while  working  separately;  ^  and  where  parties 
who  have  been  engaged  in  a  common  enterprise,  sharing  profits 
upon  a  final  adjustment  or  settlement  at  the  close  of  their 

1  Spiers  v.  Wisner,  88  Mich.  614 ;  50  5  Anderson  v.  Henry,  27  O.  S.  104. 
N.  W.  Rep.  654.  6  Armstrong  v.  McAlpin,  18  O.  S. 

2  Glass  V.  Greathouse,  20  O.  503;     184. 

Barrington  v.  Alexander,  6  O.  189;  ^Childs  v.  Childs,  10  O.  S.  339;  Mc- 

Devoue  v.  Fanning,  2  Johns.  Ch.  252;  Arthur  v.  Franklin,  16  O.  S.  193. 

Mitchell  V.  Dunlap,  10  O.  120.  SHampson  v.  State,  8  O.  S.  315. 

3  Taylor  v.  Exporting  Co.,  5  O.  163.  3  Eagle  v.  Butler,  6  O.  S.  295. 
*  Fithian  v.  Corwin,  17  O.  S.  118. 


§  171.]  ACCOUNTING.  15 'J 

business,  the  same  must  be  made  by  a  full  and  complete  state- 
ment of  the  whole  business,  and  not  as  if  settlements  had  been 
made  from  time  to  time  between  them.^ 

An  accounting  cannot  be  had  where  a  partnership  is  denied 
and  its  existence  appears  to  be  uncertain;'^  nor  can  a  retired 
partner  compel  an  accounting  to  be  made  by  a  new  firm  to 
the  old  firm,  which  assumed  all  liabilities  and  agreed  to  col- 
lect and  account  for  all  outstanding  bills,  in  which  they  may 
have  failed  —  his  remedy  is  an  action  at  law  for  damages 
in  failing  to  render  such  account ;  ^  nor  can  a  legatee  of  a  de- 
ceased partner  compel  a  surviving  partner  to  make  an  ac- 
counting, unless  the  legal  representative  of  such  deceased 
partner  has  refused  to  bring  the  suit.'*  A  cause  of  action  of 
one  partner  against  his  copartner  for  an  account  accrues  upon 
dissolution,^  and  a  suit  for  an  accounting  cannot  be  maintained 
by  parties  claiming  to  be  an  existing  partnership,  where  it 
appears  that  they  have  become  an  incorporated  body,  which 
has  not  been  dissolved.*  Damages  for  false  representations 
on  the  sale  of  property  cannot  be  taken  into  consideration  in 
a  suit  for  an  accounting,  as  a  person  cannot  in  equity  be  made 
a  debtor  by  fraud.^ 

Sec.  171.  Parties. —  All  persons  interested  in  obtaining 
an  accounting,  or  in  the  result,  should  be  made  parties,*  even 
though  not  interested  in  the  same  right.^  A  creditor,  secured 
in  a  deed  of  trust,  in  an  action  for  an  account  of  the  fund, 
should  make  all  creditors  in  the  same  class  with  him  parties.^' 
In  an  accounting  between  partners  all  the  members  should  be 
joined."  In  an  action  against  a  guardian  by  one  of  several 
wards  all  the  others  should  be  joined.^^  y^^d  in  an  accounting 
between  joint  owners  of  property  judgment  creditors  should 
be  made  parties.'^    If  the  pleadings  show  others  beside  the 

1  Gill  V.  Geyer,  15  O.  S.  399.  7  Holt  v.  Daniels,  61  Vt.  89 ;  17  Atl. 

2Walcott  V.  Watson,  53  Fed.  Rep.  Rep.  786  (1889). 

^-9-  8  Petrie  v.  Petrie,  7  Lans.  90 ;  Fer- 

3  Stein  V.  Benedict,  83  Wis.  603 ;  53  rer  v.  Barrett,  4  Jones'  Eq.  455 

N.  W.  Rep.  891  (1892).  9  Little  v.  Sayre,  7  Hun,  485. 

*  Lake  v.  Barnes,  18  N.  Y.  Supp.  471.  i"  Murphy  v.  Jackson,  5  Jones'  Eq. 

*  Gray  v.  Kerr,  46  O.  S.  652.  11. 

6  Benninger  v.  Gall,  1  Gin.  S.  C.  R.       "  Derby  v.  Gage,  38  111.  27. 
331.  1^  Hendry  v.  Clardy,  8  Fla.  77. 

13  Berjson  v.  Stein,  34  O.  S.  294. 


160  ACCOITNTING.  [§  172. 

plaintiff  interested,  the  defendant  may  require  such  persons  to 
be  made  parties.^ 
Sec.  17ti.   Some  rules  of  pleading  in  accounting. —  A 

plaintiff  seeking  an  accounting  must  allege  specifically  that 
he  has  made  a  demand  therefor,  or  that  he  is  ignorant  of  the 
condition  of  the  account  and  is  unable  to  ascertain  it.-  If  a 
defendant  in  an  action  desires  to  have  an  accounting  he  must 
clearly  set  forth  his  right  thereto  in  order  to  avail  himself  of 
that  privilege;  *  but  in  matters  of  a  complicated  nature,  where 
the  parties  are  numerous,  it  may  be  quite  impossible,  if  not 
undesirable,  that  all  the  claims  of  the  various  parties  as  to  the 
different  items  proposed  for  adjudication  should  be  made  a 
matter  of  distinct  averment  in  the  pleading;*  nor  is  it  essen- 
tial that  a  detailed  history  of  the  dealings  of  the  parties  be 
averred.*  A  person  whose  duty  it  is  to  keep  an  account  who 
claims  a  balance  due  thereon  upon  accounting  must  by  his 
pleading  show  how  the  same  is  produced,  and  cannot  call  oth- 
ers to  an  account  until  he  himself  has  performed  his  duty  and 
rendered  an  account.®  Facts  showing  liability  under  certain 
conditions  should  be  set  forth  in  a  petition  by  the  creditors 
of  an  insolvent  corporation  for  an  accounting  and  to  compel 
the  stockholders  to  contribute  upon  their  unpaid  subscrip- 
tions when  the  same  is  made  upon  condition.^ 

The  petition  in  an  accounting  should  state  that  the  plaintiff 
has  had  mutual  dealings  with  the  defendant,  the  time  when 
their  last  settlement  occurred,  and  that  the  plaintiff  has  ap- 
plied to  the  defendant  for  a  settlement  of  their  accounts.  The 
petition  may  be  in  the  manner  following: 

Plaintiff  and  defendant  have  had  mutual  dealings  for 

years,  each  keeping  his  own  accounts,  which  are  of  a  com- 
plicated nature. 

Plaintiff'  states  that  on  the day  of -,  18 — ,  he  of- 
fered to  produce  to  the  defendant  his  accounts  and  requested 
defendant  to  produce  his  in  order  that  they  might  come  to 
an  adjustment  and  settlement  of  the  same,  which  the  defend- 
ant wholly  failed  and  refused  to  do,  and  so  said  accounts 
therefore  remain  in  an  unsettled  state.     That  there  is  due  the 

1  Southal  V.  Shields,  81  N.  C.  28.  5  HoUaday  v.  Elliott,  3  Ore.  340. 

-Keunicott  v.  Leavitt.  37  III.  App.  6  Wood  v.  Boney,  2\   Atl.  Rep.  574 

435;  Claypoole  v.  Gish.  10^  Ind.  424;  (N.  J..  1891). 

Dodds  V.  Vaunoy.  61  Ind.  81).  "Ma'Jus  v.  Pridham,  20  S.  W.  Rep. 

3  Bailey  v.  Bergen.  4  T.  &  C.  642.  1015  (Tex.,  18J2). 

^Babcock  v.  Camp.  12  O.  S.  11.  36. 


§§  173,  174.]  ACCOUNTING.  161 

plaintiff  a  balance  on  their  said  mutual  accounts  in  the  sum  of 

dollars. 

Wherefore  plaintiff  prays  that  the  defendant  may  be  or- 
dered to  render  an  account  and  that  he  may  have  judgment 
for  any  balance  found  diie  him,  etc. 

Sec.  173.  Petition  against  agent  for  accounting. — 

Plaintiff  says  that  on  the  day  of  ,  18 — ,  he  em- 
ployed the  defendant  as  his  agent  to  "[state  nature  of  hnsiiiess 
and  what  was  done'].  Defendant  has  [state  the  vjorTc  performed 
and  completion  of  same],  but  neglects  and  refuses  to  make 
and  render  an  account  of  his  transactions  as  such  agent. 

That  on  the day  of .  18 — ,  plaintiff  requested  said 

defendant  to  account  to  him  for  the  money  by  him  received 
and  pay  over  the  same,  but  that  he  refused  and  still  refuses 
to  comply  with  said  request. 

Plaintiff  therefore  prays  that  the  said  defendant  may  be 
required  to  render  an  account  of  his  said  dealings  as  such 
agent  to  plaintiff,  and  have  judgment  for  the  amount  which 

may  be  found  due  with  interest  from  the  day  of  , 

18—,  besides  the  costs  of  this  suit. 

Sec.  174.  Petition  for  an  accounting  between  partners. — 

[Caption.] 

1.  Plaintiff  says  that  on  the day  of  ,  18 — ,  he  en- 
tered into  a  partnership  with  the  said  defendant  under  the 
name  and  style  of  P.  M.  &  Co.,  for  the  purpose  of  carrying 

on  the  business  of  [state  nature  of  hvsiness]  at ,  for  the 

term  of years  next  thereafter. 

2.  That  plaintiff  paid  in  as  his  share  of  capital  in  said  business 

the  sum  of  dollars,  and  said  firm,  at  the  date  aforesaid, 

commenced  business  at ,  and  continued  the  same. 

3.  [Here  state  the  nature  of  the  difficulties  and  what  is  de- 
sired to  have  an  accounting  upon.] 

4.  That  plaintiff  has  requested  and  demanded  of  said  defend- 
ant to  make  and  render  a  statement  and  account  of  his  said  deal- 
ings as  such  partner,  as  hereinbefore  set  forth,  but  that  said  de- 
fendant has  wholly  failed  and  refused  so  to  render  an  account 
or  to  pay  over  to  this  plaintiff  the  amount  of  money  due  him. 

5.  Wherefore  the  plaintiff  prays  that  the  defendant  may 
be  compelled  to  account  with  him  as  to  his  said  dealings  in 
the  premises,  and  that  he  may  be  ordered  to  pay  over  to 
plaintiff  any  money  found  in  his  hands  and  due  this  plaintiff, 
and  for  such  other  equitable  relief  as  is  proper. 

Note. —  This  may  serve  as  a  general  outline  for  such  a  petition.  See 
form  in  particular  case,  used  by  Maxwell,  p.  595.  Plaintiff  must  aver  an 
indebtedness  or  a  probable  indebtedness.  Hunt  v.  Gordon,  52  Miss.  191. 
A  partner  who  substitutes  the  partnership  for  his  individual  liability  on  an 
accommodation  paper  is  accountable  to  his  copartner  for  any  consequent 
loss.    Smith  v.  Loring,  2  O.  440. 

11 


CHAPTER  14. 


AGENTS. 


Sec.  175.  Rights  and  liabilities  of  an 
agent. 

176.  Petition  against  agent  for 

failure    to    account    for 
goods  sold. 

177.  Petition  by  agent  for  com- 

pensation for  services. 


Sec.  178.  Petition  against  agent  for 
disobeying  orders. 
179.  Petition  against  agent  for 
not  rendering  account. 
Petition  against  del  credere 

agent 
Petition  against  agent  for 
selling  goods  on  credit. 


180. 


181. 


Sec.  175.  Rights  and  liabilities  of  an  agent. —  Either  prin- 
cipal or  agent  may  be  held  responsible  for  a  fraud  committed 
by  the  latter  within  the  scope  of  his  authority.^  In  other 
cases  an  election  must  be  made.  Thus,  where  an  agent  makes 
a  contract  in  his  own  name  without  disclosing  his  principal, 
suit  cannot  be  brought  against  both  agent  and  principal  upon 
discovering  the  latter,  but  an  election  must  be  made.  It 
may  be  true  that  the  agent  is  primarily  liable,  but  as  the  con- 
tract was  made  for  the  benefit  of  the  principal  he  may  be 
held  responsible  at  the  election  of  a  third  party.-  Both  prin- 
cipal and  agent,  however,  cannot  be  held;^  and  having,  there- 
fore, elected  to  hold  the  latter,  he  cannot  afterwards  recover 
of  the  principal.*  The  mere  commencement  of  an  action 
ao-ainst  the  one  or  the  other  will  not  of  itself  be  considered 
an  election,  but  may  only  be  considered  as  having  been  made 
when  satisfaction  has  been  obtained  from  the  one  or  the 
other.^  To  avoid  personal  liability  an  agent  should  disclose 
his  agency  and  the  name  of  his  principal.^    If  he  acts  vrithout 

V.  Railroad  Co.,  40  O.  S. 


1  Maple 
313. 

2  Lee  v.  Insurance  Co.,  1  Handy, 
217 ;  Byington  v.  Simpson,  134  Mass. 
169;  45  Am.  Rep.  314;  Coleman  v. 
Bank,  53  N.  Y.  393 ;  Lancaster  v.  Ice 
Co.,  153  Pa.  St  427. 

3  Silver  v.  Jordon,  136  Mass.  319; 
Schepflin  v.  Dessar,  20  Mo.  A  pp.  569. 


*  Schepflin  v.  Dessar,  supra;  Clea- 
land  V.  Walker,  11  Ala.  1058 ;  46  Am. 
Dec.  238. 

5  Maple  V.  Railroad  Co.,  40  O.  S. 
313;  Cobb  v.  Knapp,  71  N.  Y.  848; 
27  Am.  Rep.  51. 

6  Wheeler  v.  Miller,  2  Handy,  149. 


§  176.]  AGENTS.  163 

authority,  though  in  good  faith,  he  is  personally  responsible 
to  those  ignorant  of  his  want  of  authority.^  There  is  in  fact 
an  implication  of  warrant  of  authority  on  his  part,  so  that  he 
becomes  personally  liable  for  a  breach  therein,^  and  he  is  liable 
for  disobeying  the  orders  of  his  principal.*  An  agent  may 
sue  in  his  own  name  when  the  contract  is  so  made ;  *  or  when 
he  loans  money,  taking  security  therefor  in  his  own  name.* 
An  attorney  acting  as  agent  may  sue  and  be  sued  as  other 
agents ;  ^  or  when  a  note  is  made  payable  to  one  as  agent  J 
Unless  the  contract  shows  who  the  principal  is,  suit  must  be 
brought  thereon  by  the  agent.^  And  an  agent  having  a  con- 
tract upon  which  he  may  bring  an  action  may  sue  for  the 
use  of  his  principal.^  An  agent  is  personally  responsible  when 
signing  his  name  as  agent  to  an  instrument  in  which  the  name 
of  the  principal  does  not  appear.^"^  He  cannot  be  held  liable 
for  false  representations  as  to  land  when  he  states  that  his 
information  is  obtained  from  his  principal."  And  if  an  agent 
pays  money  to  his  principal  after  having  been  notified  not  to 
do  so  he  is  liable  therefor.  ^- 

Sec.  176.  Petition  against  agent  for  failure  to  account 
for  goods  sold. — 

That  on  the day  of ,  18—,  the  plaintiff  delivered 

to  the  defendant,  at  his  request,  the  following  goods,  viz.  [de- 
scribe goods],  belonging  to  the  plaintiff,  and  of  the  value  of 

$ ,  to  be  sold  for  cash  by  said  defendant  for  compensation 

to  be  paid  to  him  by  plaintiff. 

That  said  defendant  sold  goods  between  the day  of 

,  18—,  and  the  day  of ,  18—,  but  has  failed  to 

account  for  the  same  to  the  plaintiff. 

J  Trust  Company  v.  Floyd,  47  O.  S.  6  Gray  v.  Publishing  Co.,  21  N.  Y.  S. 

525.  967. 

2Noe    V.    Gregory,   7   Daly,    283;  ^Cocke  v.  Dickson,  26  Am.  Dec. 

White  V.  Madison,  26  N.  Y.  117 ;  Pat-  214. 

terson  v.  Lippencott,  47  N.  Y.  457.  8  Manette  v.  Simpson,  15  N.  Y.  S. 

Cf.  Cole  T.  O'Brien,  51  N.  W.  Rep.  448. 

31^-  9  Burke  v.  Steel,  40  Ga.  217 ;  Cross 

»  Whitney  v.  Express  Co.,  104  Mass.  v.  Johnson,  65  Ga.  717.    Contract  as 

^^^'  to  sale  of  real  estate.    Wightman  v. 

♦Arcade  Hotel  Co.  v.  Wiatt,  1  O.  Bancroft,  22  O.  &  172. 

^-  ^-  ^S-  10  Collins  V.  Insurance  Co.,  17  O.  S. 

8  Barb  Wire  Co.  v.  Purcell,  48  Kan.  215 ;  Anderton  v.  Shoup,  17  O.  S.  12.5. 


267. 


"  Griffing  v.  Diller,  21  N.  Y.  S.  4< 
12  Carter  v.  Stork,  18  N.  Y.  S.  470. 


164  AGENTS  [§§  177-179. 

That  oil  tlie day  of ,  18 — ,  the  plaintiff  demanded 

of  said  defendant  the  amount  due  plaintiff  for  said  goods, 
which  he  refused  to  pay- 

Tiiat  no  part  thereof  has  been  paid,  and  there  is  now  due 
from  the  defendant  to  the  plaintiff  thereon  the  sum  of  $ . 

Sec.  177.  Petition  by  agent  for  compensation  for  serv- 
ices.— 

{Caption?^ 

That  on  the day  of ,  IS — ,  the  plaintiff  entered 

into  the  service  of  defendant  at  his  request  as  agent  {state 
nature  of  duties\  and  continued  in  his  employment  for  the 

period  of months,  for  which  the  defendant  promised  to 

pay  him  the  sum  of  % . 

That  no  part  of  said  sum  has  been  paid,  and  there  is  now 
due  from  the  defendant  to  the  plaintiff  thereon  the  sum  of 
$ ,  with  interest  from  the day  of ,  13 — . 

\_Prayer.'\ 

Note. —  An  asent  may  sue  for  services  in  an  ordinary  action  on  account. 
See  ante,  sec.  152.  If  acting  as  agent  of  two  persons  he  cannot  recover  from 
both  principals  unless  both  assented  to  his  double  agency.  Bell  v.  McCon- 
nell.  37  O.  S.  396 ;  Capener  v.  Hogan,  40  O.  S.  203.  Where  services  are  volun- 
tarilv  rendereil  tliere  can  be  no  recovery.  Chadwick  v.  Knox.  31  N.  H.  226  ; 
64  Am.  Rep.  329. 

Sec.  178.  Petition  against  agent  for  disobeying  orders. 

\Caption7\ 

That  on  the day  of ,  IS — ,  the  plaintiff,  at  the  re- 
quest of  the  defendant,  employed  him  for  a  certain  reward  to 
sell  {state  what\  belonging  to  the  plaintiff,  which  were  of  the 
value  of  S • 

Defendant  thereupon  contracted  with  plaintiff  to  obey  all 
instructions  given  him  by  plaintiff  regarding  the  sale  of  said 
goods,  and  thereupon  received  the  same  for  the  purposes  of 
said  sale. 

That  the  plaintiff  afterward  directed  said  defendant  to  {state 
tiature  of  emjyloym.ent']. 

Plaintiff  alleges  that  the  defendant  failed  and  neglected  to 
comply  with  and  carry  out  the  instructions  so  given  him  by 
plaintiff  in  respect  to  the  sale  of  said  goods,  by  reason  whereof 
said  goods  were  injured  {state  how],  to  the  damage  of  plaintiff 
in  the  sum  of  § . 

Note. —  See  ante,  sec.  175. 

Sec,  179.  Petition  against  agent  for  not  rendering  ac- 
count.— 

{Cajjiio?!.'] 

Plaintiff  alleges  that  on  the day  of ,  18 — ,  he  em- 
ployed the  defendant  0.  D.  as  his  agent  to  adjust,  settle  and 


§§  180,  181.]  AGENTS.  165 

collect  outstanding  numerous  accounts  which  plaintiff  had 
against  persons  within  the  state  of . 

That  it  was  stipulated  and  agreed,  in  and  by  virtue  of  said 
contract  of  employment,  that  the  said  defendant  was  to  report 

his  collections  monthly,  after  deducting per  cent,  of  the 

amount  of  his  collections  as  his  compensation. 

That  the  defendant,  on  the  day  of  ,  18 — ,  under- 
took said  employment,  and  continued  therein  until  the 

day  of ,  18 — ,  when  he  quit  said  employment. 

That  during  the  time  defendant  was  so  engaged  in  said  serv- 
ice he  collected  of  the  accounts  so  as  aforesaid  due  plaintiff 

the  sum  of  | .     That  the  compensation  for  making  said 

collections  due  him  is  the  sum  of  $ ,  leaving  the  sum  of 

$ due  plaintiff,  which  sum  the  defendant  has  wholly  failed 

and  refused  to  pay,  although  said  sum  has  been  duly  de- 
manded of  him. 

\_Prayer.'\ 

Note. —  An  agent  receiving  money  from  his  principal,  even  though 
through  an  illegal  transaction  in  which  he  acted  as  agent,  is  nevertheless 
liable  therefor.     Norton  v.  Blinn,  39  O.  S.  145. 

Sec.  180.  Petition  against  del  credere  agent. — 

[Caption.'] 

Plaintiff  entered  into  a  contract  not  in  writing  with  the  de- 
fendant on  the day  of ,  18 — ,  by  which  it  was  agreed 

that  the  defendant,  as  agent  for  plaintiff,  would  receive  and 
sell  [state  what]. 

That  by  virtue  of  said  agreement  plaintiff  consigned  said 

goods  to  defendant  from  to  ,  18 — ,  which  were  to 

be  sold  by  him,  as  a  del  credere  agent,  upon  commission,  and 
for  cash,  defendant  having  no  authority  from  plaintiff  to  sell 
the  same  upon  credit. 

Defendant  did  on  the  day  of  ,  IS — ,  sell  to  one 

E.  F.  % worth  of  the  goods  so  consigned  to  him  upon 

months-  credit.  That  the  said  E.  F.  at  the  time  of  said  sale 
was,  and  now  is,  insolvent,  and  was  not  then,  nor  is  he  now, 
able  to  pay  for  said  goods. 

There  is  therefore  due  plaintiff  from  the  defendant  for  the 

foods  so  by  him  sold  to  said  E.  F.  the  sum  of  % ,  for  which 
e  asks  judgment. 

I^'ec.  181.  Petition  against  agent  for  selling  goods  on 
credit. — 

[^Caption.'] 

That  on  the day  of ,  18 — ,  the  plaintiff,  at  the  de- 
fendant's request,  employed  the  defendant  for  a  certain  reward 
to  sell  for  cash  the  toUowing  goods,  viz.  [describe  them],  be- 
longing to  the  plaintiff,  of  the  value  of  $ . 

That  the  defendant  then  promised  the  plaintiff  to  sell  the 
same  upon  the  terms  aforesaid,  and  then  received  said  goods 


166  AGENTS.  [§  181. 

for  that  purpose.    But  on  or  about  the day  of ,  18— 

said  defendant,  without  plaintiff's  consent,  sold  a  part  of  said 
goods  upon  credit,  and  otherwise  than  for  cash,  to  C.  D.,  for 

the  sum  of  $ ,  which  sum  is  still  unpaid,  and  said  C.  D.  is 

■wholly  insolvent. 

That  the  plaintiff  has  sustained  damages  in  the  premises  in 
the  sum  of  $ 

IPrayer.] 


CHAPTER  15. 


ANIMALS. 


Sec.  182.  Introductory. 

183.  Damages  by  trespassing  an- 
imals. 

184  Petition  for  damages  from 
trespassing  animals  aris- 
ing from  failure  to  keep 
partition  fence  in  repair. 

185.  Petition  for  damages  caused 

by  trespassing  stock. 

186.  Impounding  strays  and  ac- 

tion for  recovery. 

187.  Petition  in  replevin  for  the 

recovery  of  animals. 

188.  Answer  in  replevin  for  re- 

covery   of    animals    im- 
pounded. 

189.  Liability  of  owners  of  dogs. 

190.  Petition   for  damages   for 

sheep  killed  by  dogs. 

191.  Petition  for  damages  for  in- 

jury to  person  by  dog. 
198.  Petition  for    damages  for 
killing  dog. 


Sec.  193.  Injury  to  animals  by  rail" 
road  company  prior  to 
statute  as  to  fencing. 
194  Injury  to  animals  by  rail- 
roads —  Under  statute  as 
to  fencing. 

195.  Petition     against    railroad 

company  for  damages  for 
injuring  cattle. 

196.  Petition  for  damages  where 

injury  occurred  by  rea- 
son of  failure  of  railway 
company  to  fence. 

197.  Allegation  where  injury  oc- 

curs by  reason  of  insuflS- 
ciency  of  fences. 

198.  Petition    where    company 

failed  to  whistle  or  ring 
bell  —  Cattle  injured  at 
crossing. 

199.  Answer     claiming     cattle 

were  unlawfully  at  large. 


Sec.  182.  Introductory. —  It  is  not  the  purpose  to  enter 
into  a  full  discussion  of  the  law  of  Ohio  relating  to  animals, 
common  or  statutory,  but  only  so  far  as  may  be  necessary 
to  outline  the  rights  and  remedies  of  parties  who  may  find  it 
necessary  to  resort  to  courts  for  the  redress  of  their  griev- 
ances in  reference  to  this  subject. 

Sec.  183.  Damages  by  trespassing  animals.— This  sub- 
ject shows  the  growth  of  the  law  as  forcibly  as  any  we  may 
have  occasion  to  examine.  It  illustrates  the  fact  that  the 
necessities  of  our  citizens  give  rise  to  law,  and  that  courts 
formulate  and  construe  it,  as  occasion  requires,  for  the  best 
interest  of  the   people,  and    consider  and   declare   the  law 


168  AiNlMALS.  [§  183. 

in  accordance  with  the  circumstances,  necessities,  habits  and 
understandings  of  the  people.  The  common  understanding 
prior  to  the  year  1865  in  Ohio  was,  that  fences  were  made  to 
keep  animals  in,  and  not  to  keep  those  belonging  to  others 
out.  While  it  is  true  that  the  common  law  upon  this  subject 
had  generall}^  been  adopted,  it  was  deemed  not  applicable  to 
the  state  in  its  early  history.  In  1S54  there  was  no  law  re- 
quiring animals  to  be  fenced  unless  they  were  of  an  unruly  or 
vicious  character,^  and  the  owner  of  uninclosed  ground  had 
to  assume  the  risk  of  occasional  intrusion  by  animals  which 
happened  to  be  roaming  about,  as  they  were  at  liberty  to  do ; 
and  the  owners  of  such  wandering  animals  assumed  the  risk 
of  their  loss  or  injury  arising  from  unavoidable  accident.^  At 
that  time  it  was  considered  that  the  common-law  rule  requir- 
ing owners  to  keep  their  animals  inclosed  at  their  peril,  mak- 
ing them  liable  in  damages  when  they  escaped  and  caused 
injury  to  others,  whether  the  latter's  property  was  fenced  or 
not,  was  not  suited  to  the  conditions  of  the  state  and  was  not 
therefore  followed.^  As  the  state  advanced  in  population, 
however,  its  necessities  were  different,  and  the  common-law 
principles  upon  this  subject  were  adopted.  In  addition  to  an- 
imals of  a  dangerous  character,  which  were  then  required  to 
be  kept  in  an  inclosure,*  rooting  swine  were  compelled  to 
remain  on  their  master's  land ;  ^  to  which  were  added  others 
from  time  to  time,  such  as  the  horse,  the  mule,  cattle,  etc., 
which  were  apt  to  trouble  the  neighbor's  garden.* 

The  statute '  makes  the  owners  of  animals  who  are  suffered 
to  run  at  large  in  violation  of  law  ^  liable  for  all  damages 
done  by  them  upon  the  premises  of  another,  without  reference 
to  the  fences  which  may  inclose  them.  This  provision  is  not 
intended  to  be  in  the  nature  of  a  penalty,*  and  the  owners  of 
animals  running  at  large  are  not  guilty  of  any  breach  of  duty 
under  the  statute  if  they  are  at  large  without  the  omission 

1  S.  &  C.  Stat,  p.  70.  *  29  O.  L.  467. 

2Kerwhaker  v.  Railroad  Co.,  3  O.  5  56  O.  L.  77;  S.  &  C.  Stat.,  p.  76. 

S.  172.  6  R.  S.,  sec.  4202. 

3  3  O.  S.  172;  Cincinnati,  etc.  Rail-  ^Secs.  4206,  4251. 

road  Co.  v.  Watterson,  4  O.  S.  424 ;  8  Sec.  4202. 

Cranston  v.  Railroad  Co.,  1  Handy,  »  Railway  v.  Methven,  21  O.  S.  586. 
196. 


§  183.]  ANIMALS.  169 

of  reasonable  care  upon  their  part.^  Part  owners  of  a  parti- 
tion fence  failing  to  keep  the  portion  assigned  to  them  in 
repair,  by  reason  whereof  stock  from  an  adjoining  inclosur© 
breaks  and  enters  upon  the  land,  are  without  remedy;  and  if 
the  stock  are  breachy  or  unruly,  the  party  damaged  must 
show  that  the  defect  in  the  fence  was  not  the  proximate 
causa  of  the  daraage.- 

It  is  the  rule  in  Ohio  that  persons  who  have  joint  posses- 
sion or  ownership  of  animals  may  be  sued  jointly  for  damages 
committed  by  them,  although  the  several  animals  are  owned 
separately  and  individually,^  In  suing  for  damages  caused  by 
trespassing  cattle  by  failure  to  fence,  it  must  be  in  assumpsit^ 
if  relying  on  an  express  contract  to  fence;  but  if  on  custom  or 
negligence  it  should  be  an  action  on  the  case/  Where  a  fence 
between  adjacent  owners  of  premises  is  good  in  some  places 
and  bad  in  others  and  cattle  get  over  the  good  part,  their 
owner  is  liable  for  damage  done  to  the  crop  of  his  neighbor. 
The  trespass  is  the  sole  wrong  of  the-  defendant,  as  the  neglect 
of  the  plaintiff  to  keep  all  parts  of  the  fence  in  repair,  even 
though  a  wrong,  does  not  contribute  to  the  injury.'  Ordinarily 
the  owners  of  animals  are  not  liable  for  any  damages  done  by 
them  when  they  are  not  trespassing,  unless  they  fall  within 
the  class  of  vicious  animals,  the  character  of  which  the  owner 
is  aware;  when  they  are  out  of  their  place,  however,  and 
commit  some  injury,  the  owner  is  liable  without  respect  to 
their  habits.*  To  charge  the  owner  for  an  injury  done  by  an 
animal  which  is  not  of  a  vicious  character,  it  must  be  alleged 
that  it  was  in  the  habit  of  committing  like  injury,  of  which 
the  owner  had  knowledge.''     A  person  may  have  the  right  to 

1  Railroad  Co.  v.  Stephenson.  24  O.  v.  Sutton,  24  O.  S.  338,  as  to  joint 
S.  48.  owners  of  dogs. 

2  Phelps  V.  Cousins,  29  O.  S.  135;  ^Mathis  v.  McCord,  W.  647. 
Northcott  V.  Smith,  4  O.  C.  C.  568-9.  SMcCiean  v.  McCarthey,  3  W.  L.  M. 

8  Jack  V.  Hudnall,  25  O.  S.  255.  See  489  (1861). 
poHt  sec  189;  Brady  v.  Ball,  14  Ind.        6  Dickson  v.  McCoy,  39  N.  Y.  401 ; 

317.    Ordinarily  held  that  they  can-  Dolph  v.   Ferris,  42  Am.  Dec.  246 ; 

not  be  jointly  sued.     Adams  v.  Hall,  Goodman  v.  Gay,  53  Am.  Dec.  589. 
19  Am.  Dec.  690;  Van  Steenburg  v.        ''Vrooman  t.  Lawyer,  13    Johns. 

Tobias.  31  Am.  Dec.  310 ;  Cogswell  v.  339 ;  Stumps  v.  Kelly,  22  111.  140. 
Murphy,  46  Iowa,  44     See  McAdams 


170  ANIMALS.  [§  184. 

expel  animals  which  are  trespassing,  but  in  doing  so  he  must 
not  unnecessarily  injure  them,  as  he  is  liable  to  their  owner 
for  any  injury  to  them,  even  though  the  owner  of  the  animal 
would  be  liable  for  the  damage  caused  by  tliem.^  The  act^ 
authorizing  certain  animals  to  be  killed  when  they  are  dis- 
eased and  past  recovery  does  not  prevent  the  owner  from 
having  his  property  rights  in  them  determined  in  the  proper 
tribunal.^ 

Sec.  184.  Petition  for  damages  from  trespassing  animals 
arising  from  failure  to  keep  partition  fence  in  repair. — 

{^Caption  and  formal  opening?^ 

That  on  the day  of ,  18 — ,  previous  thereto,  the 

plaintiff  and  defendant  owned  in  fee-simple  and  were  in  pos- 
session of  adjoining  farms  in  the  township  of ,  in  said 

county,  separated  by  a  partition  fence,  of  which  the  plaintiff 

and  defendant  had  by  mutual  agreement  assigned   the 

half  to  the  plaintiff  and  the naif  to  the  defendant  as  his 

respective  portion  to  keep  in  repair.  That  the  plaintiff  has 
kept  the  portion  so  assigned  to  him  in  good  repair,  but  that 
the  defendant  has  failed  and  neglected  to  keep  the  portion  as- 
signed to  him  in  repair,  by  reason  whereof,  on  the day  of 

,  18 — ,  or  at  divers  other  times,  certain  animals  \naimng 

them,  according  to  sees.  Jf.W6,  J^W2']  belonging  to  the  said 
defendant  broke  down  said  portion  of  said  fence  so  assigned 
to  the  said  defendant  to  keep  in  repair,  and  entered  upon,  ate 
and  destroyed  the  crop  of  the  plaintiff  growing  on  his  said 
tract  of  land  and  otherwise  injured  his  said  premises;  that  on 

the day  of ,  18 — ,  said  plaintiff  filed  his  complaint 

with ,  a  justice  of  the  peace  within  and  for  the  said 

township,  who  appomted , and , 

three  judicious,  disinterested  men,  residents  of  the  count\%  to 
assess  the  damages  so  sustained  by  the  plaintiff.  That  said 
assessors  so  appointed,  and  upon  due  notice  having  been  given 

to  the  defendant,  met  on  the day  of ,  18 — ,  and  upon 

their  oaths  assessed  the  said  plaintiff's  damage  for  the  trespass 
so  done  by  the  defendant's  animals  [yiaming  theni]  to  be  paid  by 

the  said  defendant  at dollars.     That  on  the day  of 

,  18 — ,  said  plaintiff  demanded  of  said  defendant  payment 

of  the  amount  of  damages  so  assessed  by  said  assessors, 
which  the  defendant  refused  and  still  refuses  to  pay.  Where- 
fore plaintiff"  prays  judgment  for  the  sum  of  dollars 

with  interest  from  the day  of ,  18 — . 

1  Kerwhaker  v.  Railroad  Co.,  3  0.        ^  Brill  v.  Humane  Society,  4  O.  C, 
S.  172.  C.  358. 

aR  S.,  sec.  3725  A. 


§§   185,  186.]  ANIMALS.  171 

Sec.  185.    Petition  for  damages  caused  by  trespassing 
stock. — 

\^Caption  and  formal  02)en{ng.'] 

That  on  the day  of ,  18 — ,  the  cattle  and  stock  of 

the  defendant  W.  K.  D.  trespassed  upon  the  lands  of  plaint- 
iff in  said  county,  and  in  jured  and  destroyed  growing  corn 
belonging  to  plaintiff;  and  that  by  reason  of  the  stock  and 
cattle  of  the  defendant  so  trespassing  on  and  destroying  the 
crops  of  plaintiff,  he  has  sustained  damages  in  the  sura  of 
$ ,  for  which  he  asks  judgment  against  the  defendant. 

NOTK — Demurrer  to  this  form  overruled  in  Davis  v.  Wilson,  11  Kan.  74, 

Sec.  186.  Impounding  strays  and  action  for  recovery. — 

"We  are  not  here  concerned  much  about  the  provision  of  the 
statute  in  reference  to  taking  up  or  impounding  animals  which 
may  be  treated  as  strays,^  unless  the  animals  which  happen 
to  be  unlawfully  at  large  get  into  his  master's  neighbor's  field 
and  are  there  taken  up  and  held  until  the  owner  pays  the  stat- 
utory fee.^  If  the  owner  happens  to  be  of  a  stubborn  dispo- 
sition, instead  of  paying  a  dollar  he  may  be  compelled  to  pay 
considerable  more,  as  instanced  by  some  of  the  cases,  in  his 
attempt  by  the  ordinary  proceeding  in  replevin  to  gain  pos- 
session of  his  animal,  rather  than  pay  the  small  fee  stipu- 
lated by  statute.  The  right  of  a  land-owner  to  distrain  and 
hold  animals  which  may  be  found  trespassing  upon  his  land 
until  the  damages  thereby  sustained  are  paid  does  not  pre- 
vail in  Ohio  as  it  did  at  common  law.''  Moderation  must  be 
exercised  in  protecting  the  public  from  injuries  by  animals. 
There  is  always  some  reason  for  their  being  at  large;  it  may 
be  by  some  unavoidable  accident,  or  even  by  the  act  of  God, 
in  which  case  the  owner  should  be  given  an  opportunit}''  to 
explain  the  circumstance;  and  a  city  cannot  say  that,  when 
found  in  its  streets,  an  officer  shall  seize  and  sell  them  to 
the  hio-hest  bidder  because  of  their  offense.*  Animals  are  con- 
sidered  at  laro^e  withm  the  meaning  of  the  statute  whether 
they  are  so  with  or  without  the  consent  of  the  owners;^  but 
where  the  animal  passes  through  the  owner's  field  through  a 
line  fence  in  an  adjoining  owner's  field  and  from  there  into 

1 R.  S.,  sec.  4207.  *  Rosebaugh  v.  Saffin,  10  O.  32, 

2  R.  S.,  sec.  4208.        •  5  Sloan  v.  Hubbard,  34  O.  S.  583. 

-•5  N<Mthcott  V.  Smith,  4  O.  GO.  565. 


172  ANIMALS.  [§  187. 

the  inclosure  of  another  and  an  adjoining  owner,  he  is  not  at 
large  within  the  meaning  of  the  statute  and  cannot  be  taken 
up.^  And  if  it  be  shown  that  it  esca.ped  without  the  knowl- 
(Bdge  or  fault  of  the  owner,  it  must  be  given  up  on  payment 
of  a  reasonable  compensation  for  the  taking  up.^ 

Sec.  187.    Petition  in  replevin  for  the  recovery  of  an- 
imals.— 

S^Caption  and  formal  openingi\ 

Plaintiff  says  that  on  the day  of ,  18 — ,  he  was  and 

ever  since  has  been  the  owner  of  and  entitled  to  the  posses- 
sion of  ten  head  of  hogs,  of  the  value  of dollars,  and  that 

the  said  defendant,  on  or  about  that  date,  unlawfully  and  wil- 
fully did  take  such  hogs  and  confine  them  in  a  pen,  being  then 
unfit  to  put  hogs  in,  being  too  small,  filthy,  wet,  muddy,  and 
did  not  properly  feed  and  care  for  said  hogs  while  they  were 
in  said  pen,  whereby  said  hogs  were  then  and  there  damaged 

to  the  amount  of dollars.     The  plaintiff  further  says  that 

the  defendant  then  lived  within  one-half  mile  from  him  and 
did  then  and  there  well  know  that  the  said  plaintiff  was  the- 
owner  of  said  hogs  and  entitled  to  the  possession  thereof,  yet 
wrongfully  took  and  kept  said  hogs  as  aforesaid  for  the  space 
of  five  days  and  until  they  were  taken  in  replevin  in  this  case; 
and  did  not  give  plaintiff  notice  of  having  taken  and  detained 
said  hogs. 

Plaintiff  also  says  that  the  defendant  had  no  right  to  take- 
up  and  impound  said  hogs  as  thus  done  in  said  township  of 

for  the  reason  that  there  was  then  in  said  township  of 

a  public  pound  in  which  persons  findmg  hogs  and  other  do- 
mestic animals  running  at  large  in  said  township  of ,  con- 
trary to  the  statutes  of  Ohio,  had  the  right  to  impound  the- 
same. 

Plaintiff  also  says  that  the  defendant,  while  having  posses- 
sion of  said  hogs,  did  not  advertise  the  same,  nor  give  any 
notice  to  the  clerk  of  said  township  of  taking  possession  of 
said  hogs;  but  that  he  kept  said  ho^s  from  said  plaintiff  for 
five  days  as  aforesaid.  The  possession  of  same  was  often  de- 
manded by  plaintiff. 

Plaintiff  therefore  prays  that  on  final  hearing  of  this  case 
this  court  may  adjudge  him  to  be  the  owner  of  said  hogs  and 
entitled  to  the  possession  of  same  while  they  were  thus  de- 
tained, and  also  asks  judgment  against  said  defendant  for  the 
sum  of dollars,  his  damages  so  as  aforesaid  sustained. 

Note.— See  sec.  42U9;  Albright  v.  Payne,  43  O.  S.  86.    See,  also,  chapter 
on  Replevin. 

1  Rutter  V.  Henrv,  46  O.  S.  272.  2r.  s.,  sec.  4207. 


§§  188,  189.]  ANIMALS.  173 

See.  188.  Answer  in  replevin  for  recovery  of  animals  im- 
poiinded. — 

The  defendant  denies  that  the  said  plaintiff  was  entitled  to 

the  immediate  possession  of  said  ten  hogs  on  the day  of 

,  IS — ,  or  at  the  commencement  of  this  action;  and  he 

denies  that  the  defendant  then  or  at  any  other  time  wrong- 
fully or  unlawfully  detained  the  possession  of  said  hogs.  And 
he  denies  that  he  confined  said  hogs  in  a  pen  that  was  unfit 
for  such  purpose,  or  that  said  pen  was  too  small,  filthy,  wet  or 
muddy,  or  that  the  defendant  neglected  to  properly  feed  or  in 
any  manner  care  for  said  hogs  while  they  were  detained  or 
held  in  his  possession,  or  that  said  hogs,  or  any  of  them,  were 
in  any  manner  damaged  in  any  sum  whatever  by  reason  of 
any  fault  or  neglect  of  the  defendant  or  otherwise.  And  he 
denies  that  he  did  not  give  plaintiff  notice  that  said  hogs  had 
been  taken  up  and  retained  by  him,  and  he  denies  that  there 

was  then  or  is  now  within  the  said  township  of a  public 

pound  or  inclosure  in  which  persons  finding  hogs  or  other 
domestic  animals  running  at  large  in  said  township  contrary 
to  the  statutes  of  Ohio  could  impound  the  same,  or  that  any 
such  inclosui'e  or  pound  was  ever  constructed  or  procured  by 
the  trustees  of  said  township. 

Sec.  189.  Liability  of  owners  of  dogs. —  As  the  statutes 
of  Ohio  now  exist,  dogs  have  assumed  the  dignity  of  prop- 
erty, and  the  owner  may  recover  damages  from  any  one  who 
injures  or  kills  them.^  JSTo  suits  in  behalf  of  dogs  have,  how- 
ever, been  discovered,  but  they  have  been  the  source  of  some 
litigation  by  reason  of  injuries  which  they  have  inflicted  to 
mankind  and  their  special  enemy,  the  sheep.  In  one  case  at 
least  they  have  been  the  cause  of  litigation  between  their 
owners,  growing  out  of  a  fight  between  their  respective  dogs, 
in  which  it  was  hqld  that  the  owner  of  the  dog  which  pro- 
voked the  quarrel  and  caused  the  fight  could  not  hold  the 
owner  of  the  other  dog  responsible  for  the  consequences.^  It 
is  the  rule  in  Ohio,  as  it  is  in  many  other  states,  though  not 
all,  that  it  is  not  necessary  to  aver  and  prove  the  vicious 
propensities  of  the  dog,  or  that  his  owner  had  knowledge 
thereof,  thus  imposing  a  much  greater  responsibility  upon 
the  owner  than  where  the  rule  of  scienter  is  in  force  ^     The 

» R  S.,  sec.  4214.  Mitchell  v.  Clapp,  12  Cash.  278 ;  Orne 

2  Wiley  V.  Slater,  22  Barb.  506.  v.  Roberts.  51   N.  H.  110;  Woolf  v. 

»  Job  V.  Harlem,  13  O.  S.  485  (1862) ;  Chalker,  31  Conn.  12L 
Gries  v.  Zeck,  24  O.   S.  329  (1873): 


174  ANmALS.  [§  190. 

presumption  of  law  is  that  every  man  is  acquainted  with 
the  habits  of  his  domestic  animals,  and  soienter  is  to  be  in- 
ferred from  the  fact  of  domestication.^  Any  one  who  permits 
a  dog  to  remain  about  his  premises  as  if  he  were  his,  or  who 
harbors  a  dog,  is  regarded  as  the  owner,  but  not  when  he  is 
there  only  temporarily .^  An  owner  of  premises  is  not  re- 
garded as  a  keeper  merely  because  a  dog  is  kept  there  by  his 
hired  man.'  The  statute  makes  the  owners  of  an  animal  of 
the  dog  kind  jointly  and  severally  liable  to  any  person  dam- 
aged by  them,  and  provides  that  they  may  be  declared  to  be 
a  common  nuisance  and  killed  within  twenty-four  hours  after 
the  rendition  of  a  judgment  for  damages  by  a  court  of  jus- 
tice.* Where  the  owners  of  two  or  more  dogs  together  injure 
sheep,  either  one  is  liable  for  the  whole  injury.^  An  averment 
in  an  action  for  damage  that  "  a  certain  pack  or  lot  of  dogs, 
owned,  harbored  and  unlawfully  kept  by  the  defendants, 
wounded  certam  sheep  of  the  plaintiff,"  is  sufficient  even 
though  the  defendant  may  have  only  owned  some'  of  the  dogs 
which  caused  the  injury.® 

Sec.  lyO.  Petition  for  damages  for  sheep  killed  by  dogs. 

That  on  the day  of .  IS — ,  and  from  thence  until 

and  at  the  time  of  the  damage  and  injury  to  the  plaintiff  here- 
inafter mentioned,  said  defendant  wrongfully  kept  a  certain 
dog  during  all  that  time,  well  knowing  that  said  dog  was  ac- 
customed to  attack,  bite  and  injure  sheep,  cattle,  etc. ;  said  dog 

did  attack,  chase,  bite  and  worry lambs,  the  property  of 

the  plaintiff,  of  the  value  of  $ ,  by  reason  whereof of 

said  lambs,  of  the  value  of  S ,  died,  and  the  residue  were 

greatly  terrified,  damaged  and  injured,  and  rendered  of  no  use 
or  value  to  the  plaintiff,  to  his  damage  in  the  sum  of  $ . 

Wherefore  plaintiff  prays,  etc. 

Note.—  R.  S.,  sec.  4213 ;  ante,  sec.  189. 

1  Clark  V.  Hite,  Tapp.  1.     Contra,        3  Whittemore  v.  Thomaa,  153  Mass. 
Maxwell  on  Code  Pldg.  92,  and  cases    347 ;  26  N.  E.  Rep.  885. 

there  cited.  *  R.  S.,  sec.  4213 ;  Brady  v.  Ball,  14 

2  Frammell  v.  Little,  16  Ind.  251 ;     Ind.  317. 

Wilkinson   v.   Parrett,   32  Cal.  102;  » Baldwin  v.  Skillington,  1  W.  L.  M. 

Marshall  v.  Bowman,  62  la.  57 ;  Marsh  389. 

▼.  Jones,  21  Vt  378 ;  Barrett  v.  Rail-  6  McAdams  v.  Sutton,  24  O.  S.  333. 
road  Co.,  3  Allen,  101. 


§§   191-193.]  ANIMALS.  175 

Sec.  191.  Petition  for  damages  for  injury  to  a  person  by 
a  dog.— 

That  on  and  prior  to  the day  of ,  18—,  the  defend- 
ant harbored  and  kept  a  dog  which,  as  he  well  knew,  was  ac- 
customed to  attack  and  bite  mankind,  which,  as  he  well  knew, 
was  of  a  fierce  and  dangerous  nature  to  go  at  large,  yet  the 
defendant  unlawfully  and  negligently  allowed  said  dog  to  go 
at  large  without  bein^  properly  secured. 

That  on  the  day  of  ,  18—,  defendant's  said  dog 

attacked,  bit  and  wounded  the  plaintiff  by  [describe  the  inju- 
ries^, by  reason  whereof  the  plaintiff  became  sick  and  lame, 
and  so  continued  for  the  space  of months  then  next  follow- 
ing, and  was  thereby  prevented  during  all  that  time  from  at- 
tending to  his  lawful  business,  and  necessarily  expended  the 
sum  of dollars  in  endeavoring  to  be  cured  of  said  sick- 
ness and  lameness,  to  the  damage  of  the  plaintiff  in  the  sum 
of dollars. 

[Prai/er.'] 

Sec.  1 92.  Petition  for  damages  for  killing  dog. — 

[Caption.'] 

That  on  the  - —  day  of  ,  18—,  the  defendant  unlaw- 
fully shot  off  and  discharged  a  certain  gun  then  and  there 
loaded  with  gunpowder  and   shot,  at  and  against  a  certain 

dog  of  the  plaintiff,  of  the  value  of  $ ,  and  thereby  and 

therewith  so  greatly  wounded  said  dog  that  by  reason  thereof 

said  dog,  on  the  ^~  day  of  ,  18—  died^  to  the  damage 

of  plaintiff  in  the  sum  of  $ ,  for  which  he  asks  judgment. 

Note.—  When  a  person  may  not  kill  a  dog,  see  Anderson  v.  Smith,  7  111. 
App,  354;  State  v.  Holder,  81  N.  C.  527.  Not  because  he  is  a  nuisance,  but 
because  he  had  bitten  some  one.  Perrv  v.  Phipps,  10  Ired.  L.  259 ;  Morse  v. 
Nixon,  6  Jones'  L.  293 ;  Morris  v.  Nugent,  7  C.  &  P.  573. 

Sec.  193.  Injury  to  animals  by  railroad  companies  — 
Prior  to  statute  as  to  fencing. —  In  the  absence  of  any  stat- 
ute or  contract  requiring  railroad  companies  to  fence  their 
tracks,  they  occupied  the  same  position  as  did  the  owners  of 
land,  and  were  not  therefore  required  to  fence  their  track  to 
keep  stock  from  getting  thereon ;  ^  and  were  therefore  onlv 
required  to  use  ordinary  care  and  prudence  to  avoid  injury  to 
stock  casually  coming  upon  their  track.-  It  was  considered 
lawful  for  the  owner  of  stock  to  permit  them  to  run  at  large, 
and  also  for  railroad  companies  to  operate  their  trains  upon 

1  Cranston  V.  Railroad  Co.,  1  Handy,  O.  S.  172;  4  O.  S.  433;  Railway  v. 
196  (1854).  Wood,  47  O.  a  431. 

-Kerwhaker    t.    Railroad    Co.,    3 


176  ANIMALS.  [§  194. 

an  un  fenced  railroad  track,  and  that  the  owners  of  cattle 
found  on  an  unfenced  railroad  track  were  not,  therefore,  tres- 
passers. The  owner  of  stock  and  the  railway  proprietor  each 
assumed  the  increased  dangers  arising  from  such  a  rule,  and 
were  bound  to  exercise  reasonable  and  ordinary  care  to  pre- 
vent any  injury/  the  paramount  duty  of  those  in  charge  of 
the  trains  being  the  safety  of  the  persons  and  property  in 
their  charge.^  Under  such  rule,  in  order  to  make  a  prima 
facie  case  against  a  railroad  company,  it  was  necessary  to 
show  that  the  servants  in  charge  of  a  train  were  negligent 
and  that  an  injury  was  caused  by  such  negligence.'' 

Sec.  194.  Injury  to  animals  by  railroads  —  Under  stat- 
ute as  to  fencing. —  As  the  state  advanced  in  population,  it 
was  found  necessary  to  change  the  law  upon  this  subject,  and 
relief  was  furnished  by  the  legislature  by  the  passage  of  an 
act*  imposing  a  duty  upon  railroad  companies  to  inclose  their 
roads  by  fence,  and  requiring  them  to  keep  the  same  in  repair 
in  the  same  manner  in  which  partition  fences  between  adja- 
cent owners  were  required  to  be  kept  in  repair,''  rendering 
them  liable  in  damages  for  injuries  caused  to  domestic  animals 
by  reason  of  the  want  or  insufficiency  of  such  fences,  corre- 
sponding duties  having  been  also  imposed  upon  the  owners  of 
animals  requiring  them  to  be  fenced  in.® 

Changes  have  been  made  from  time  to  time,  so  that  the 
duties  and  liabilities  of  railroad  companies  are  now  confined 
largely  to  statutory  provisions  upon  the  subject  of  fences,^  it 
being  unnecessary  to  here  enter  into  detail.  One  of  the  most 
important  changes,  however,  was  the  addition  to  the  statute 
requiring  railroad  companies  to  fence  their  tracks  of  a  provis- 
ion allowing  them  to  contract  with  the  owners  of  adjoining 
farms  to  construct  and  keep  in  repair  any  portion  of  the  fenc- 
ing which  may  inclose  the  railroad  track  passing  through  the 
farms  of  such  owners.^ 

1  Railroad  Co.  v.  Watterson,  4  O.  S.  *  In  1859  (S.  &  C.  331). 

433 ;  Central  O.   R.  R.  Co.  v.   Law-  5  s.  &  C.  648  and  649. 

rence,  13  O.  S.  66  (1861).  6See  ante,  sec.  183. 

24  O.  S.  474;  3  O.  S.  172;  13  O.  S.  '  R.  S.,  sees.  3324-3333. 

66,  s  K.  S.,  sea  2334. 

SBelfontaine  R  R  Co.  v.  Bailey,  11 
O.  S.  339  (1860). 


§  lOi.J  ANIMALS.  177 

The  duties  and  liabilities  of  railroad  companies  have  been 
more  clearly  defined  by  the  decisions  of  courts  on  questions 
arising  under  the  statute,  which  may  be  briefly  outlined.  It 
is  well  settled  that  the  mere  fact  that  the  animal  has  been 
killed  by  a  train  of  cars  does  not  give  rise  to  a  presumption 
of  negligence  on  the  part  of  the  railroad  company,  but  that 
the  plaintiff  must  prove  affirmatively  that  it  was  the  want  of 
the  use  of  ordinary  care  on  the  part  of  the  company  which 
caused  the  injury.^ 

If  an  owner  of  stock,  not  choosing  to  avoid  danger  to  them 
by  keeping  them  on  his  own  inclosure,  permits  them  to  run 
in  the  vicinity  of  an  uninclosed  railroad  track,  he  can  require 
of  the  railroad  company  the  exercise  only  of  what  would  be 
regarded  in  this  peculiar  business,  of  ordinary  and  reasonable 
care  to  avoid  unnecessary  injury  to  animals  casually  coming 
upon  their  uninclosed  road.- 

The  paramount  duty  of  those  in  charge  of  a  railroad  train 
is  of  course  the  care  and  safety  of  the  persons  and  property 
in  their  charge ;  but  if  the  servants  of  the  company,  having 
proper  regard  to  their  duties  in  this  respect,  can  by  the  exer- 
cise of  ordinary  care  see  and  save  horses  trespassing  upon 
their  tracks,  it  is  their  dut}''  to  do  so.'  This  rule,  however, 
seems  to  have  been  to  a  slight  degree  modified  by  an  unre- 
ported case  decided  by  the  supreme  court,  in  which  it  was 
stated  that  it  was  the  duty  of  a  railroad  company  to  stop  its 
train,  if  in  its  power  by  the  exercise  of  ordinar\^  care  and 
prudence  so  to  do,  without  injury  to  its  train,  after  it  discov- 
ers the  stock  upon  its  track.*  This  holding  would  seem  to 
imply  that  railroad  companies  are  not  required  to  be  on  the 
lookout  for  trespassing  stock,  but  must  only  endeavor  to 
prevent  any  injury  to  them  after  they  may  discover  them 
upon  their  tracks.     The  rule   is  followed   by  a  number  of 

1  Railroad  Co.  v.  Mc]\Iillen.  37  O.  S.  3  Zanesville.  etc.  R.  R.  Co.  v.  Smith, 
554;  Riiilroa.l  v.  Lawrence,  13  O.  S.  22  O.  S.  227  (1877);  Beemis  v.  Rail- 
60 ;  Rurtuer  v.  Railroad  Co.,  34  O.  S.  road  Co.,  42  Vt.  37.3  ;  L.  &  N.  R.  R.  Co. 
96.  V.  Wainscott,  3  Bush.  149. 

2  Central  O.  R.  R.  Co.  v.  Lawrence.  *  Lake  Shore  &  M.  S.  Ry.  Co.  v. 
13  O.  S.  66 ;  Cincinnati  &  Z.  R.  R.  Slater.  24  W.  L.  B.  2.  See,  also,  ar- 
Co.  V.  Smith,  22  O.  S.  227  (1871).  tide  in  24  W.  L.  B.  171. 

12 


178  ANIMALS.  [§  194. 

authorities  in  other  states,  but  has  never  been  laid  down  by 
any  official  report  of  the  supreme  court.^ 

Under  the  act  of  1S59  the  duty  of  railroad  companies  is  not 
properly  discharged  by  contracting  with  another  party  to 
fence  the  road,  when  such  party  has  not  constructed  or  kept 
the  fence  in  sufficient  repair.  If  the  road  is  properly  fenced 
the  company  is  held  only  to  the  exercise  of  ordinary  care  in 
the  running  of  its  trains  to  prevent  injury  to  animals.  When 
improperly  fenced  a  higher  degree  of  care  is  required ;  ^  and 
where  the  stock  of  the  land-owner  is  injured  by  a  train  on  ac- 
count of  the  neglect  to  keep  a  fence  in  repair  which  he  had 
contracted  with  the  company  himself  to  do,  he  cannot  recover 
unless  he  can  show  that  the  injury  was  in  fact  caused  by  the 
negligent  running  of  the  train,^  or  that  it  was  intentional,  or 
the  result  of  gross  carelessness.  So  far  as  the  railway  com- 
pany is  concerned  by  reason  of  a  failure  to  build  or  keep  a 
fence  in  repair,  it  is  immaterial  whether  it  has  entered  into  a 
contract  with  a  land-owner  to  construct  or  keep  the  fence  in 
repair,  as  the  contractor  is  regarded  as  the  agent  merely  of 
the  company,  and  it  is  still  liable  for  its  omission  as  it  is  for 
the  neglect  of  any  other  employee.  This  is  the  principle  upon 
which  several  cases  have  been  decided ;  *  and  the  rule  is  the 
same  if  a  portion  of  the  right  of  way  has  been  sold  to  a  second 
company.^  Making  a  contract  to  build  a  fence  cannot  be  con- 
sidered as  building  one ;  ^  and  where  a  person  in  granting  the 
right  of  way  to  a  railroad  company  stipulates  and  covenants 
for  himself,  his  heirs  and  assigns,  that  he  will  erect  and  main- 
tain a  fence  on  each  side  thereof,  a  subsequent  grantee  takes 
it  subject  to  this  covenant  as  conclusive,  and  cannot  claim 
any  damage  from  a  breach  thereof,  nor  require  any  higher 
degree  of  care  upon  the  part  of  a  railroad  company  to  avoid 
injury  to  stock  than  if  the  covenant  had  been  kept.  A  writ- 
ten agreement  by  a  grantor  of  a  right  of  way  to  fence  on  each 

1  Dennis  v.  Railroad  Co.,  116  Ind.  3  Railway  v.  Heiskell,  38  O.  S.  666. 
43 ;  Hanna  v.  Railroad  Co.,  119  Ind.  *  Railway  Co.  v.  Wood,  47  O.  S.  431 ; 
316;  Palmer  V.  Railroad  Co.,  37  Minn.  Gill  v.  Railway  Co.,  27  O.  S.  240; 
223;  33  N.  W.  Rep.  707 ;  Railway  Co.  Railway  Co.  v.  Allen,  40  O.  S.  206. 

V.   Rollins,   5  Kan.    167;  Earmes  v.        ^  Railway  Co.  v.  Allen,  sw^J^a. 
Railroad  Co.,  98  Mass.  563.  ^  qui  v.  Railway  Co.,  supra. 

2  Gill  V.  Railroad  Co.,  37  O.  S.  240. 


§  194.]  ANIMALS.  179 

side  of  a  railway  track  will  not  affect  the  rights  of  a  subse- 
quent purchaser  without  notice,  actual  or  constructive,  of  the 
existence  thereof,  so  as  to  prevent  him  from  requiring  the 
railroad  company  to  fence  its  road  in  accordance  with  the 
statute.^  AYhere  a  railroad  fence  forms  the  boundary  of 
an  inclosed  field  it  is  the  duty  of  both  land-owner  and 
railroad  company  to  maintain  the  fence  in  proper  order; 
and  if  a  land-owner  knowing  that  a  fence  is  insufficient  turns 
his  stock  into  a  field  and  it  is  injured  by  reason  of  the  insuffi- 
ciency of  the  fence  without  any  fault  on  the  part  of  the  com- 
pany in  running  its  train,  the  land-owner  is  guilt}'"  of  contrib- 
utory negligence  which  will  preclude  a  recovery  b}^  him.- 
This  would  be  so  especially  where  the  fence  is  not  so  divided 
as  that  either  the  land-owner  or  railroad  company  is  charged 
with  the  duty  of  maintaining  any  particular  portion  thereof.'' 

The  duty  of  a  railroad  company  to  the  stock  of  a  person 
other  than  the  land-owner  immediately  adjoining  the  rail- 
road track,  which  strays  upon  the  track  by  reason  of  the 
fence  at  that  point  not  being  in  sufficient  repair,  is  quite  dif- 
ferent from  that  which  it  owes  to  the  land-owner  himself. 
In  such  cases  the  railroad  company  is  only  bound  to  exercise 
ordinary  care,  and,  in  the  absence  of  negligence  in  the  man- 
agement of  its  trains,  is  not  liable  to  the  owner  of  such  stock 
for  any  injury  which  may  so  happen  to  them.*  And  where 
an  injury  occurs  to  stock  by  reason  of  the  neglect  of  the  com- 
pany to  keep  the  fence  in  repair  as  required  by  statute,  it 
is  not  relieved  from  its  liability  on  account  thereof,  even 
though  the  owner  of  the  stock  injured  pastured  them  on  the 
land  adjacent  to  the  road  with  full  knowledge  of  the  insuffi- 
ciency of  the  fence ;  nor  is  it  necessary  that  the  company  should 
have  knowledge  of  the  condition  of  the  fence  to  make  it  liable.^ 

An  owner  of  stock  is  not  guilty  of  contributory  negligence 
precluding  recovery  of  damages  by  him  against  a  railroad 

1  Railway  Co.  v.  Bosworth,  46  O.  S.  5  Railway  Co.  v.  Smith,  38  O.  S. 
81 ;  R  S.,  sees.  3324,  3325.  410 ;    Railroad    Co.    v.   Scudder,   40 

2  Railroad  Co.  v.  Sloan,  27  O.  S.  O.  S.  173;  Rodgers  v.  Railroad  Co.,  1 
341;  Railway  Co.  v.  Infirmary,  32  Allen,  16;  Railroad  Co.  v.  Schultz, 
O.  S.  571.  43  O.  S.  270,     See,  also,  T.  &  W.  R  R 

8  Railroad  Co.  v.  Infirmary,  32  O.  S.  Co.  v.  Daniel,  21  Ind.  258;  C.  &  A. 
566.  R  Co.  V.  Saunders,  85  111.  288 ;  Davis 

4  Railway  Co.  v.  Wood,  47  O.  S.  431.     v.  Railroad  Co.,  40  Iowa,  292. 


180  ANIMALS.  [§  194. 

company  where  the  stock,  without  fault  on  his  part,  enter  the 
field  of  another  through  which  a  railroad  passes,  aud  on  ac- 
count of  a  defect  in  the  fence  adjoining  the  track  stray  upon 
the  track  and  are  thereby  injured  ; '  but  the  owner  of  animals 
must  have  used  such  reasonable  care  and  precaution  in  restrain- 
ing them  as  a  prudent  and  cautious  man  would  ordinarily  use; 
and  if  they  are  breachy  or  unruly,  the  care  must  be  commen- 
surate with  their  character,- 

Eailway  companies  are  bound  to  fence  private  ways  and 
roads  where  they  cross  their  tracks  or  connect  with  a  public 
highway,  and  are  liable  for  injury  to  stock  for  their  failure  to 
do  so  when  the  injury  occurs  by  reason  of  such  neglect.^  And 
the  statute  requires  that  fences  shall  be  constructed  and  main- 
tained within  the  limits  of  villages  or  cities  where  they  do  not 
obstruct  highways  and  streets.  So,  if  an  animal  strays  upon 
the  track  of  a  railroad  company  in  a  village  by  reason  of  a 
failure  to  fence,  the  company  is  liable  in  damages.*  It  is  not 
negligence,  however,  on  the  part  of  a  railroad  company  in 
failing  to  construct  an  additional  fence  between  the  railroad 
and  lands  of  an  adjacent  land-owner  who  has  constructed 
fences  inclosing  his  own  lands  in  such  a  manner  as  to  inclose 
the  railroad  also;  nor  will  the  fact  that  the  right  of  way  was 
unpaid  for  prevent  the  comimny's  joining  this  fence  to  the 
fence  constructed  by  such  land-owner  so  as  to  inclose  its 
road.'  But  where  the  public  necessities  relieve  a  railroad 
company  from  constructing  cattle-guards  at  crossings,  the 
duty  will  devolve  upon  it  to  place  them  at  the  first  point  at 
which  it  will  not  interfere  with  such  public  necessities;  and 
whether  they  have  done  so  is  a  question  of  fact.  So,  where 
an  injury  occurs  by  reason  of  its  failure  to  construct  cattle- 
guards  at  such  points,  the  question  as  to  the  liability  of  the 
company  in  damages  therefor  is  one  for  the  jury.^ 

A  railroad  company,  in  regulating  the  speed  of  its  trains, 
need  not  regard  the  increased  danger  to  animals  which  may 

1  Railroad  Co.  v.  Stephenson.  24  *  See  Cleveland  &  P.  R.  R.  Co.  v. 
O.  S.  48  (1873).  McConell.  26  O.  S.  57. 

2  Railway  Co.  v.  Howard.  40  O.  S.  6.  5  Haxton  v.  Railway  Co..  26  O.  S. 

3  Railroad  Co.  v.  Cunningham,  39  214 

O.  S.  327.  6  Railroad  Go.  v,  Newbrander,   40 

O,  S.  15  (1833). 


§§  195,  196.]  ANIMALS.  181 

happen  to  be  running  at  large  in  the  vicinity  of  their  tracks 
and  for  that  reason  lessen  their  speed ;  ^  nor  is  it  liable  for 
damages  on  account  of  an  injur}-  to  stock  which  may  have 
been  caused  by  the  lighting  of  a  head-light  early  in  the  even- 
ing, thereby  interfering  with  the  vision  of  the  engineer  and 
preventing  jjim  from  seeing  cattle  upon  the  track.^ 

Sec.  195.  Petition  against  railroad  company  for  damages 
for  injuring  cattle. — 

\_Caption  and  formal  opening.  \ 

Defendant  is  a  corporation,  duly  incorporated  under  the  laws 
of  the  state  of  (Jhio,  and  at  the  time  of  the  grievances  herein- 
after complained  of  owned,  controlled  and  managed  a  certain 

railroad,  with  locomotive  and  cars,  in  the  county  of and 

state  of  Ohio. 

That  on  the  day  of ,  18^,  the  said  plaintiff  was 

the  owner  of  certain  cattle,  to  wit  \iiaming  them\  of  the  value 

of dollars  each  \jiaming  them'],  which  on  the day  of 

,  18 — ,  strayed  on  the  track  of  said  defendant  railway, 

and  the  said  defendant  so  carelessly  and  negligently  ran  and 
managed  its  locomotive  and  cars  that  the  same  was  run  against 
and  over  said  {^naming  stock],  thereby  killing  same,  to  the 
damage  to  said  plaintiff  in  the  sum  of dollars. 

Wherefore  said  plaintiff  prays  judgment,  etc. 

See.  11)6.  Petition  for  damages  where  injury  occurred 
by  reason  of  failure  of  railway  company  to  fence. — 

[Caption,-  and  averment  of  corporate  capacity  of  defendant.'] 

That  on  or  about  the day  of ,  18 — ,  said  defend- 
ant was  operating  a  railroad  through  the  county  of ,  in 

the  state  of  Ohio ;  that  at  said  time  and  at  a  certain  place 
on  its  said  road  where  it  was  required  by  laAV  to  fence  its 
track,  said  defendant  had  neglected  and  failed  to  [maintain, 
or,  construct]  a  fence  sufficient  to  turn  stock  [w,  a  cattle- 
guard  where  the highway  used  by  the  public  crosses  said 

railroad  company,  sufficient  to  prevent  stock  from  entering 
upon  said  railroad]. 

That  on  the  said  day  the  plaintiff  was  the  owner  of  the  fol- 
lowing horses,  to  wit:  two  fine  large  bay  geldings  of  the  value 
of dollars  each;  said  horses,  at  the  place  where  said  rail- 
road company  was  not  fenced  to  turn  stock  \or,  w-here  said 

highway  crosses  said  railroad],  by  reason  of  the  failure 

of  the  defendant  to  fence  [or,  to  construct  cattle-guards], 
strayed  upon  the  track  of  said  railroad  and  were  run  against 
and  "killed  by  a  locomotive  and  cars,  managed  by  the  servants 

1  Central  O.  R.  R  Co.  t,  Lawrence,        =  b.  &  I.  R.  R.  Co.  v.  Schruyhart, 

13  O.  S.  66  (1862>  10  O.  S.  110  (1859j. 


182  ANIMALS.  [§§  197,  198. 

of  the  defendant,  to  the  damage  of  said  plaintiff  in  the  sum 

of dollars. 

"Wherefore  plaintiff  prays  judgment  against  the  said  defend- 
ant railway  company  in  the  sum  of dollars  with  interest 

from . 

Note. —  Changed  from  Railway  Co.  v.  Hoflf hines.  46  O.  S.  643. 

Sec.  197.  Allegation  where  injury  occurs  by  reason  of 

insufficiency  of  fences. — 

That  the  fence  was  constructed  in  a  careless  and  negligent 
manner,  and  was  defective  and  insufficient  to  turn  stock  on 
or  to  prevent  domestic  animals  going  upon  the  railroad  track; 
that  prior  to  and  at  the  time  of  the  accident,  this  fence  was, 
through  the  negligence  of  the  defendant,  in  bad  repair,  and 
insufficient  to  turn  stock  and  to  prevent  domestic  animals 
from  going  upon  the  railroad,  of  which  the  defendant  knew ; 
that  by  reason  of  such  negligence  and  the  defective  condi- 
tion of  such  fence,  and  without  the  fault  of  the  plaintiff,  his 

horse,  on  the day  of ,  IS — ,  got  across,  through,  and 

over  the  fence  to  and  upon  the  track,  where  it  was  killed  by 
the  defendant's  cars. 

Note.— From  Railroad  Co.  v.  Schultz,  43  O.  S.  270. 

Sec.  198.  Petition  where  company  failed  to  whistle  or 
ring  bell  — Cattle  injured  while  crossing  highway. — 

\_Averme7it  of  corporate  cajMcity.'] 

At  the  time  of  the  grievances  hereinafter  complained  of,  and 
for  a  long  time  prior  thereto,  the  defendant  was  owning  and 
operating  a  railroad  running  from  A.,  in  said  county,  to  Y., 
Ohio,  and  were  running  several  trains  of  cars  over  said  road 
every  day. 

Said  railroad,  near  the  depot  at  W.,  in  said  county,  and  a 
short  distance  north  from  said  depot,  crosses  a  public  high- 
way, which  is  a  main  traveled  road.  The  plaintiff  has  for 
several  years  owned  and  occupied  land  on  both  sides  of  said 
raih'oad,  his  house  and  barns  being  several  rods  west  of  said 
railroad  and  his  pasture  lying  east  of  said  railroad  and  adjoin- 
ing thereto. 

The  plaintiff  has  for  several  years  kept  and  owned  several 
cows.  In  driving  said  cows  from  said  barns  to  said  pasture 
and  from  said  pasture  to  said  barns  it  was  necessary  to  drive 
them  across  said  railroad  and  along  said  highway. 

On  or  about   the   day   of   ,  IS — ,  said  plaintiff 

was  driving  said  cows  from  said  pasture  to  said  barns  and 
across  said  railroad,  and  in  driving  them  across  the  said  rail- 
road the  plaintiff  used  all  necessary  care  and  precaution  to 
save  said  cows  from  all  and  any  injury  by  any  train  which 
might  be  passing  over  said   railroad.     The  defendant  at  the 


§  199.]  ANIMALS.  183 

time  was  running  a  train  of  cars  over  said  i-ailroad  and  across 
said  highway.  The  agents  and  employees  of  the  defendant, 
in  charge  of  said  train  and  who  were  running  the  same,  did, 
carelessly  and  negligently,  fail  to  sound  any  crossing  or  other 
whistle  at  and  for  said  crossing  or  to  ring  any  bell  as  required 
by  statute,  and  did  carelessly  and  negligently  run  and  manage 
said  train  of  cars,  and  failed  to  stop  its  said  train  after  dis- 
covering said  stock  upon  its  track.  By  reason  of  said  care- 
lessness and  negligence,  and  without  any  fault  of  the  plaintiff, 
the  engine  attached  to  said  train  did  hit,  run  into  and  against 
two  of  said  cows  and  killed  the  same,  to  the  damage  of  the 
plaintiff  in  the  sum  of  one  hundred  dollars:  for  which  sum 
he  asks  judgment  against  said  defendant  with  interest  from 


Note.—  Changed  from  L.  S.  &  M.  S.  Ry.  Co.  v.  Slater,  24  W.  L.  B.  3. 

Sec.  199.  Answer  claiming  cattle  were  uulawfiilly  at 
large. — 

The  defendant  says  that  plaintiff  did  not  live  along  the 
line  of  said  road,  nor  was  his  said  cow  grazing  in  an  unin- 
closed  field  adjacent  thereto;  that  said  plaintiff  knowingly, 
wilfully  and  unlawfully  permitted  his  said  cow  to  run  at  large 
upon  the  highways  and  uninclosed  land  adjacent  to  defend- 
ant's said  railroad  track,  whoi-oby  said  cow  went  upon  said 
railroad  and  was  accidentally  kdled;  and  that  by  reason 
thereof  plaintiff  cannot  maintain  his  said  action  against  said 
defendant. 

Note.— From  P.,  F.  &  C.  Ry.  Co.  v.  Methven,  31  O.  S.  586. 


CHAPTER  16. 


ARBITRATION  AND  AWARD. 


Sec.  200.  Parties  to,  and  what  may  be 
submitted  to  arbitration. 

201.  Agreement  to  arbitrate. 

202.  Form  of  agreement  for  sub- 

mission of  controversy, 
with  special  clauses,  and 
recitals. 

203.  Bond  may  be  entered  into. 

204.  Form  of  arbitration  bond. 

205.  Revocation  of  submission. 

206.  Petition    against  party  re- 

vokmg  submission. 

207.  Process,  how  obtained. 

208.  Oath  of  arbitrators  and  wit- 

nesses. 


Sec.  209.  Form  of  oath  of  arbitrators. 

210.  Award  to  be  in  writing. 

211.  Form  of  award. 

212.  Enforcement  of  award. 

213.  Petition  on  bond  given  in  a 

common-law  arbitration. 
214  Answer    of    invalidity    of 
award  —  Common  law. 

215.  Answer  setting  up  award. 

216.  Award  may  be  set  aside. 

217.  Objections  to  award. 

218.  Confirmation  of  an  award 

and  judgment  thereon. 

219.  Entry  setting  award  aside^ 


Sec.  200.  Parties  to,  and  what  may  be  submitted  to  ar- 
bitration.— Arbitration  is  the  submission  of  matters  of  dif- 
ference between  contending  parties  to  the  investigation  and 
determination  of  one  or  more  unofficial  persons  chosen  by 
them.  Persons  have  a  right  to  settle  their  own  controversies 
upon  any  terms  they  please,  and  as  arbitration  is  designed  for 
a  speedy  settlement,  embracing  within  its  scope  every  subject 
of  dispute,  except  it  be  the  possession  and  title  to  real  estate, 
it  at  once  becomes  obvious  that  the  law  is  almost  boundless  in 
its  capabilities  and  usefulness.  All  persons  who  have  any  con- 
troversy, except  when  possession  of  or  title  to  real  estate  may 
come  in  question,  may  submit  such  controversies  to  the  arbit- 
rament or  umpirage  of  any  person  or  persons,  to  be  mutualh'' 
agreed  upon  by  the  parties,  and  they  may  make  such  submis- 
sion a  rule  of  any  court  of  record  in  the  state.^  The  parties 
to  a  submission  must  of  necessity  have  full  qualifications  tO' 
contract.'     The  provisions  of  the  code  are  broad,  and  "all  per- 


JO.  Code.  sees.  5601.  5602. 


2  Morse  on  A.  &  W.,  p.  8, 


§  201.]  ARBITRATION    AND    AWARD.  185 

sons  "  will  include  corporations,*  executors  and  administrators,' 
guardians.^  county  commissioners,*  municipal  corporations,* 
contractors,  subcontractors  or  material-men  under  tlie  mechan- 
ics' lien  law,*  stockholders  of  railroads  in  case  of  sale,  lease,  or 
aid  by  subscription;'  and  it  has  been  held  that  an  attorney 
may  submit  a  cause  to  arbitration  on  behalf  of  his  client.*  It 
seems  that  according  to  the  weight  of  more  recent  authority, 
one  partner  has  no  implied  power,  by  virtue  of  the  partnership, 
to  bind  his  copartner  by  a  submission  to  arbitration.^  Where 
a  pending  suit  is  submitted,  other  matters  in  controversy  may 
be  joined  in  a  general  submission  between  the  parties.'''  A 
question  of  damages  may  be  submitted  and  the  judgment 
entered  according  to  the  amount  found.''  In  fact,  all  matters 
growing  out  of  contracts  as  well  as  liabilities  arising  from 
torts  committed  may  be  submitted. 

Sec.  201.  Agreement  to  arbitrate. —  The  authority  of 
arbitrators  must  necessarily  be  derived  from  the  contract  of 
submission.'-  AVhere  parties  undertake  to  submit  a  contro- 
versy under  the  statute  they  should  strictly  follow  its  re- 
quirements;'* yet  the  statutory  arbitration  does  not  take 
away  the  common- law  right  to  settle  disputed  questions  in  this 
manner;'*  so  that  where  parties  have  in  some  manner  failed 
to  comply  with  the  statute  rendering  it  ineffective  as  a  statu- 
tory submission,  as  the  omission  of  the  names  of  the  arbitra- 
tors,'* it  may  nevertheless  be  held  good  as  a  common-law  sub- 

1  Tuscaloosa  Bridge  v.  Jemison,  33  Everett  v.  Charlestown,  12  Allen,  93, 

Ala,  476 ;    Alexandria  Canal  Co.  v.  96 ;  Moye  v.  Cogdell,  69  N.  C.  93. 

Swan,  5  How,  83;  Brady  v.  Mayor,  »Tillinghast  v.  Gilmore,  17R  1. 413; 

1  Barb.  584.  22  Atl.  Rep.  942  (1891 ) ;  Bates  on  Part, 

^  Childs  V.  Updyke.  9  O.  S.  333 :  R  sec.  336,  and  cases  collected  in  note  4. 

S.,  sec.  6093.     Claims  against  estate.  Contra,  Wilcox  v.  Singletary,  W.  420 ; 

Bradstreet  v.  Pross,  11  W.  L.  B.  117;  Morse  on  A.  &  W.,  p.  7,  and  cases 

Bennett  v.  Pierce,  28  Conn.  315 ;  Ken-  cited, 

dall  V.  Bates,  35  Me.  357.  i<' Jones  v.  Welhvood,  71  N.  Y.  208. 

SBean    v.   Faruam,   6    Pick.    209;  ii  Conner  v,  Drake,  1  O.  S.  166. 

Strong   Y.   Beroujon,    18    Ala,    108;  i-' Tullis  v.  Sewell,  3  O.  510. 

Hutcliins  V.  Johnson,  12  Conn.  376.  13  Moody  v.  Nelson,  60  111.  229 ;  Fair- 

*  Jenifer  v.  County,  2  Disn.  189.  child  v.  Doleur,  42  Cal.  125. 

6  Springfield  v.  Walker,  42  O.  S.  ^^Brown  v.  Kincaid,  W.  37. 

543.  15  N.  W.  Guaranty  Loan  Co.  v.  Chan- 

6R  S.,  sec.  3200.  nell,  55  N.  W.  Rep.  121  (Minn.,  1893); 

7R  S.,  sec.  3388.  W.  F.  Seminary  v.  Blair,  1  Disney, 

s  Morris  v.   Grier,   76    N.   C.   410 ;  375.     See  sec.  205,  post. 


186  ARBITRATION    AND    AWARD.  [§  202. 

mission  and  award.^  No  particular  form  of  words  is  required, 
but  it  will  be  sufficient  if  there  is  an  agreement  to  abide  by 
the  decision  of  certain  persons  upon  a  particular  matter.^  To 
be  operative,  however,  it  must  be  mutual  and  binding  upon 
both  parties.''  A  verbal  submission  between  two  parties,  made 
simultaneously  with  or  subsequent  to  a  written  submission, 
will  be  superseded  by  the  latter.*  A  portion  only  of  the  mat- 
ters involved  may  be  submitted.^  A  mere  agreement  to  sub- 
mit certain  matters  to  arbitration  does  not  amount  to  a  sub- 
mission, nor  can  it  be  specifically  enforced,  but  either  party 
may  demand  that  the  case  be  tried  in  the  regular  way.'  The 
statute  of  limitation  is  defeated  in  its  operation  by  submission 
to  arbitration,'  and  it  works  a  continuance  of  a  pending  suit. 

Sec.  302.  Form  of  agreement  for  submission  of  contro- 
Tersy. — 

Be  it  known  that  A.  B.,  of county,  state  of ,  and 

C.  D.,  of county,  state  of ,  do  hereby  mutually  agree 

to  submit  all  questions  and  matters  of  differences  now  exist- 
ing between  us  [or'  any  speciiiG  qaestion  or  claim,  desoribing 
it]  to  the  arbitration,  determination  and  award  of  E.  F.,  G.  H. 
and  I.  J.  (or  any  two  of  them),  as  arbitrators  to  hear  and  de- 
termine the  same  at ,  in  ,  county  of ,  state  of 

,  and  make  their  award  in  writing  on  or  before  the 

day  of ,  A.  D.  18 — ,  and  when  so  made  said  award  shall 

befinal,  binding  and  conclusive  upon  us.  [And  shall  be  made 
a  rule  of  the  court  of  common  pleas  of  county,  state  of .] 

Witness  our  hands  this day  of ,  A.  D.  18 — . 

(a)  Special  clause  in  agreement. — 

Whereas  certain  differences  and  disputes  have  arisen  'and 
are  still  pending  between  the  said  parties  [for  i?isfance,  as  to 
whether  the  said  A.  B.  is  indebted  to  the  said  C.  D.  in  any 
and  in  what  sum  of  money,  and  as  to  the  price  said  C.  D. 
ought  to  pay  for  the  stock  and  trade  taken  by  him  off  the 
hands  of  the  said  A.  B.],  it  is  agreed  by  and  between  them 
that  the  same  shall  be  referred,  etc. 

1  Tyler  v.  Dyer,  13  Me.  41 ;  Moore  Nashua  &  L,  E.  Corp.  v.  Boston,  etc., 

V.   Barnett,    17   Ind.   349;  Childs  v.  157   Mass.  268;  31   N.  E.  Rep.    1060 

Updyke,  9  O.  S.  333 ;  Estes  v.  Phillips,  (1892). 

2  C.  S.  C.  R.  3;  Strum  v.  Cunning-  6  Jones  v.  Well  wood,  71  N.  Y.  208- 

ham,  3  O.  286.  6  King  v.  Howard,  27  Mo.  21 ;  Con- 

2Willson  V.  Getty,  57  Pa.  St.  266;  ner  v.   Drake,  1   O.  S.  166.     Parties 

Kimball  v.  Walker,  30  111.  482.  cannot    by    agreement  change    the 

3  Yearaans  v.  Yearaans,  99  Mass.  585.  mode  of  procedure  of  courts.     Con- 

4Loriug    V.   Alden,   3    Met.    576;  ner  v.  Drake,  1  O.  S.  166. 

Symonds  V.  Mayo,  10  Cush.  39.     See  7  Hunt  v.  Guilford,  4  O.  310. 


§§  203,  204.]  ARBITRATION    AND   AWARD.  187 

(b)  Recital  of  actiou  pending. — 

Whereas  an  action  is  how  pending  in  the court  of 

county,  state  of ■,  wherein  the  said  A.  B.  is  the  plaint- 


iff and  C.  D.  defendant,  it  is  agreed  [if  it  is  not  intended  to 
refer  the  action,  hut  only  the  suhject  of  the  action,  add:  that  all 
proceedings  in  the  action  shall  be  stayed,  but  that  in  order  to 
ascertain,  settle  and  adjust  all  accounts,  claims  and  amounts 
in  dispute  in  said  action]  that  the  same  [if  the  reference  is  to 
he  general,  add:  and  all  matters  in  difference  between  the 
parties]  shall  be  referred,  etc. 

(c)  Recital  of  action  to  be  dismissed  and  matter  in  dis- 
pute referred. — 

Whereas  the  said  A.  B.,  on  or  about  the day  of , 

A.  D.  18 — ,  commenced  an  action  in  the court  of  

county,  state  of  ,  against  the  said  C.  D.  praying  [here 

state  the  suhstance  of  the  claim]  ;  and  whereas  the  said  parties 

have  agreed  that  the  said  action  in  the  said court  shall 

be  dismissed  without  costs,  and  that  the  several  matters,  ques- 
tions and  differences  herein  specified,  viz.,  whether  [here 
enumei^ate  the  points  to  he  decided^  shall  be  referred,  etc. 

(d)  Clause  as  to  costs. — 

It  is  also  further  agreed  that  the  costs  of  the  reference  and 
award  shall  abide  the  event  of  the  award  [or,  that  the  costs 
of  the  references  and  award  shall  be  in  the  discretion  of  the 
arbitrators,  who  may  direct  to  and  by  whom  and  in  what 
manner  the  same  shall  be  paid]. 

Sec.  203.  Bond  may  be  entered  into.—  Parties  to  a  sub- 
mission may  enter  into  and  exchange  arbitration  bonds  for 
the  faithful  performance  of  the  award.^  It  should  contain 
the  matters  agreed  to  in  the  submission  and  the  names  of  the 
arbitrators,^  as  well  as  the  time  and  place  for  the  hearing,  and 
the  time  within  which  the  award  shall  be  made.^ 

Sec.  204.  Form  of  arbitration  bond.— 

Know  all  men  by  these  presents  that  we,  A.  B.  and  C.  D., 
our  heirs,  executors  or  administrators,  are  made  and  firmly 

bound  by  these  ])resents  each  to  the  other  in  the  sum  of 

dollars.  The  conditions  of  the  above  obligation  are  such,  that 
whereas  the  said  A.  B.  and  C.  D.  have  agreed  in  writing  to 
submit  all  claims  and  questions  between  them  [or  state  the 
specific  mutters  set  out  in  the  agreement  for  arhitration]  to 
the  arbitration  and  determination  of  E.  F.,  G.  H.  and  I.  J., 
the  said  award  to  be  made  in  writing  under  the  hands  of  the 

1 R.  S.,  sec.  5602.  •  Channell,  55  N.  W.  Rep.  121  (Miun., 

2W.  F.  Seminary  v.  Blair,  1  Disn.     1893). 
370 ;  N.   \V.  Guaranty  Loan  Co.  v.        3  r.  s.,  sec.  5603. 


188  AKBITKATION    AND   AWARD.  [§  205. 

said  arbitrators  (or  any  two  of  them)  and  ready  to  be  deliv- 
ered to  said  parties  on  or  before  the day  of .  18 — , 

and  said  arbitration  to  be  held  at  the  office  of  S.  M.  in  the 

township  of ,  county  of  ,  state  of  Ohio,  on  the 

day  of  ,  18 — .     The  arbitrators  having  — —   [and  that 

said  submission  shall  be  made  an  order  or  rule  of  the  court  of 
common  pleas  of county  of  the  state  of ] : 

Now,  therefore,  if  the  said  A.  B.  and  C.  D.,  their  heirs,  ex- 
ecutors or  administrators,  shall  well  and  truly  abide  by  and 
perform  such  an  award  as  may  be  made  by  said  arbitrators, 
or  any  two  of  them,  in  accordance  with  said  submission,  then 
this  obligation  shall  be  void;  otherwise  to  be  and  remain  in 
full  force  and  effect. 

Witness  our  hands  this day  of ,  18 — .         A.  B. 

CD. 

Note.—  R  S.,  sees.  5600-3. 

Sec.  205.  Revocation  of  submission. —  An  arbitration  pro 
ceeding  at  common  law  was  revocable  by  either  party  thereto 
at  any  time  before  the  a  ward. ^  The  rule  now  adopted  is  that 
after  the  arbitrators  have  been  sworn,'-  or  after  notice  that  an 
award  is  made,^  it  cannot  be  revoked.  As  submissions  made 
under  statutes  must  follow  statutory  rules,  whether  or  not 
they  may  be  revoked  must  depend  largely  upon  the  statutes.* 
Hence  it  is  held  that  where  it  has  been  made  a  rule  of  court 
by  virtue  of  the  statutes  it  cannot  be  revoked.^  The  refusal 
of  a  person  named  as  arbitrator,  or  the  institution  of  a  suit  in 
reference  to  the  same  subject-matter,"  or  the  death  of  one  of 
the  referees,  revokes  the  submission.'' 

No  particular  form  of  revocation  is  required.  It  must  con- 
form to  the  submission.  A  written  submission  requires  a 
written  revocation.-     It  must,  however,  be  express  and  posi- 

1  Davis  V.   Maxwell,  27  Ga.   368;  6  Kimball  v.  Gillan,  60  N.  H.  54 
Leonard  v.  House,  15  Ga.  473 ;  Marsh  "  Potter  v.  Sterrett,  24  Pa.  St  411 ; 
V.  Packer,  20  Vt.  198.  &  C,  39  Am.  Dec.  50. 

2  Commissioners  v.  Carey,  1  O.  S.  ^Xeyes  v.  Fulton,  42  Vt  159; 
463;  Carey  T.  Commissioners,  19  O.  Shroyer  v.  Bash,  57  Ind.  349;  Ant- 
245.  werp  v.  Stewart,  8  Johns.   (X.   Y.) 

3  Coon  V.  Allen,  156  Mass.  113;  30  125;  Wallis  v.  Carpenter,  13  Allen 
N.  R  Rep.  83.  (Mass.),  19 ;  Brown  v.  Leavitt,  26  Me. 

*  Montgomery  Co.  v.  Carey,  1  O.  S.  251. 

463 ;  Bloomer  v.  Sherman,  5  Paige,  Columbus,  Ohio,  Jan.  8,  1894. 

575 ;  Heath  v.  President  etc.,  38  How.  To  E.  F.,  G.  H,  I.  J.,  Arbitrators : 

Pr.  168.     See  ante,  sec.  201.  Gentlemen  —  You  will  take  notice 

5  Dexter  v.  Young.  40  N.  H.  130 ;  that  I  hereby  revoke  your  powers  as 

Ferrus  v.   Munn,   22  N.   J.  L.  161;  arbitrators    under    the    submission 

Haskell  v.  Whitney,  12  Mass.  47.  made  to  you  by  A.  B.  and  myself  in 


§  206.]  ARBITRATION   AND    AWARD.  189 

tive  and  not  coupled  with  conditions.^  It  must  be  absolute.' 
It  can  be  made  through  an  agent. ^  Is'otice  of  the  revocation 
must  be  given  to  the  arbitrators.*  Revocation  may  be  im- 
plied by  the  act  of  one  of  the  parties.'  If  one  party  revokes 
a  submission  without  consent  of  the  other  he  becomes  liable 
in  damages  either  upon  his  arbitration  bond  or  for  breach  of 
contract;"  but  the  fact  must  be  shown  that  the  party  in  some 
way  revoked  the  submission.'  The  measure  of  damages  for 
revocation  is  the  actual  damage  proved  and  not  the  penalty 
named  in  the  bond,^  and  may  include  costs  of  the  discontinued 
suit  and  expenses  incurred  by  reason  of  the  submission.^ 

Sec.  206.  Petition  against  party  revoking  submission. — 

[  Caption.'] 

On  the day  of ,  18 — ,  an  agreement  in  writing  duly 

executed  by  both  plaintiff  and  defendant,  in  which  it  was, 
amongst  otlier  things,  agreed  by  and  between  them  that  they 
would  submit  the  matters  in  controversy  then  existing  be- 
tween them,  respecting  certain  money  claimed  by  this  plaint- 
iff to  be  due  from  said  defendant  [or,  respecting  certain 
unsettled  accounts  and  matters  between  them,  etc.,  according 
to  the  terms  of  the  agre('riienf\,  to  the  final  award  and  deter- 
mination of  E.  F.,  G.  H.  and  I.  J.,  arbitrators  chosen  by  them 
(or  any  two  of  them),  so  that  said  arbitrators  should  make 
an  award  in  writing  ready  to  be  delivered  to  the  said  parties, 
or  such  of  them  as  should  require  the  same,  on  or  before  the 

day  of  ,18 — ;    and  thereupon,  afterwards,  to  wit, 

on  the day  of ,  IS — ,  the  said  arbitrators  were  about 

to  ])roceed  upon  the  submission  as  aforesaid  made,  and  the 
said  parties  then  appeared  before  the  said  arbitrators  and 
were  about  to  ])roceed  to  trial  of  the  matters  so  agreed  to  be 
submitted  to  the  said  arbitrators  aforesaid,  when  said  C.  D. 
revoked  the  said  submission  by  an  instrument  of  revocation  in 
writing  duly  signed  by  him  and  delivered  to  the  arbitrators, 
whereby  the  powers  of  said  arbitrators  in  the  premises  ceased 
and  were  annulled,  and  whereby  also  this  plaintiff  sustained 

-writing  dated  the  day  of  ,  ^Call  v.  Hagar.  69  Me.  531 ;  Dexter 

A.  D.  18—.  V.   Young,  40   N.   H.    130 ;    Frets  v. 

(Signed)                               C.  D.  Frets,  1  Cow.  (N.  Y.)  335 ;  Brown  v. 

1  Goodwine  v.  Miller.  32  Ind.  419.  Leavitt,  26  Me.  251. 

2Steere  v.  Brownell,  113  III.  41o.  '  Marshall  v.  Reed,  48  N.  H.  36. 

3  Madison  Insurance  Co.  v.  Gritiin,  8  Blaisdell  v.  Blaisdell,  14  N.  H.  7b. 

3  Ind.  277.  9  Rowley  v.  Young,  3  Day  (Conn.), 

*  Allen  V.  Watson,  16  Johns.  (N.  Y.)  118;  Call  v.  Hagar,  69  Me.  521 ;  Pond 

205;  Brown  v.  L<?avitt,  26  Me.  251.  v.  Harris,  113  Mass.  114. 

'  Hawley  v.  Hodge,  7  Vt.  237. 


190  ARBITRATION    AND   AWARD.  [§§  207-209. 

great  damage,  to  wit, dollars,  for  his  costs,  expenses  and 

damages  in  employing  and  paying  counsel,  subpoenaing  and 
paying  witnesses  and  in  otherwise  preparing  for  the  trial  of 
the  said  cause  before  the  said  arbitrators. 

Wherefore  plaintiff  prays  judgment  against  the  defendant 
for dollars  and  prays  for  all  other  proper  relief. 

Sec.  207.  Process,  how  obtained. —  All  parties  to  arbitra- 
tion shall  have  the  benefit  of  legal  process  to  compel  the  at- 
tendance of  witnesses,  which  shall  be  issued  by  the  clerk  of 
the  court  of  common  pleas  or  any  justice  of  the  peace  for  the 
county  in  which  the  arbitration  is  held,  and  shall  be  return- 
able before  the  umpire  or  arbitrators  on  the  day  and  place 
certain  therein  named.^  Disobedience  to  such  process  is  a  con- 
tempt of  court  and  shall  be  punished  as  in  other  like  cases.^ 

Sec.  208.  Oathof  arbitrators  and  witnesses. —  The  statute 
requires  the  umpire  or  arbitrators,  and  all  witnesses  examined, 
to  take  an  oath  to  be  administered  to  them  by  a  judge  or 
justice  of  the  peace.^  AVhere  parties  have  appeared  before 
arbitrators,  and  entered  upon  the  trial  of  the  case,  sworn  and 
examined  witnesses,  without  having  an  oath  administered  ta 
the  arbitrators  or  making  any  objections  on  that  account, 
they  will  be  deemed  to  have  waived  it.*  But  if  an  award  be 
made  by  arbitrators  without  having  the  required  oath,  it  will, 
unless  waived,  invalidate  the  award.'^ 

Sec.  209.  Form  of  oath  of  arbitrators. — 

In  the  matter  of  the  arbitration  between  A.  B.  and  C.  D., 
we,  the  undersigned  arbitrators,  appointed  by  and  between 
A.  B.  and  C.  D.,  do  solemnly  swear  that  we  will  faithfully  and 

1 R  S.,  sec.  5604.  troversy  before  said  arbitrators  on 

SUBPCENA  OF  WITNESSES.  the  part  of  said  A.  B.  [or,  C.  D. j ;  and 

State  of  Ohio,  ^  of  this  writ  make  due  return  to  me. 

County,  d'  ^"*  Given  under   ray  hand   this  

The  State  of  Ohio  to ,  Con-    day  of ,  18—.  L.  EL 

stable  of County,  Greeting:  ~  R  S.,  sec.  6505. 

You  are    hereby  commanded    to  3  o.  Code,  sec.  5606.     A  notary  pub- 
summons  X.  L.  and  Z.  T.  to  appear  lie  cannot  administer  the  oath.  State 
before  E.  F.,  G.  H.  and  L  J.,  or  any  v.  Jackson,  36  O.  S.  281. 
two  of  them,  arbitrators  cliosen  to  *  Rice  v.  Hassenpflug,  45  O.  S.  377; 
determine    a    controversy    between  Flannery  v.  Sahagian,  134  N.  Y.  85 ; 

A.  B.  and  C.  D.,  at ,  in town-  31    N.    E.   Rep.   318;    Bradstreet    v. 

ship,  said  county  and  state,  on  the  Pross,  11  W.  L.  B.  117. 

day  of ,  18—,  at o'clock  s  Flannery  v.  Sahagian,  134  N.  Y. 

— .  M.,  then  and  there  to  testify  and  85. 
give  evidence  in  relation  to  said  con- 


§  210.]  ARBITKATION   AND   AWAKD.  191 

fairly  hear  and  examine  the  matters  in  controversy  between 
them  and  will  make  a  just  award  according  to  the  best  of  our 
understanding.  E.  F. 

G.H. 
I.  J. 
State  of  Ohio,    ) 
County  of  ,  f  ^^• 

Subscribed  and  sworn  to  before  me,  a in  the  said  county 

and  state,  this  — —  dav  of ,  18 — . 

[Seed.]  "  L.  X. 

Sec.  210.  Award  to  be  in  writing.— The  award  must  be 
in  writing,  and  signed  by  the  umpire  or  arbitrators,  or  a  ma- 
jority, named  in  the  submission.^  It  must  be  confined  to 
the  terms  of  the  agreement,  which  cannot  be  changed  in  any 
respect  or  a  different  one  substituted.-  But  the  fact  that 
the  arbitrators  exceed  their  authority,  or  the  terms  of  the 
submission,  does  not  necessarily  invalidate  the  award.  If 
the  void  or  incompetent  portion  can  be  separated  from  the 
valid  without  injustice,  this  will  be  done.^  The  award  must 
comply  with  all  statutory  regulations,  and  it  will  be  fatal  to 
dispense  with  them ;  ^  and  according  to  some  authorities,  if  it 
fails  so  to  do,  it  may  stand  as  a  common-law  award  if  such 
was  the  intention  of  the  parties,^  though  to  make  it  a  good 
common-law  submission  there  must  be  a  clear  voluntary  agree- 
ment of  submission.^  An  award  must  be  sufficiently  definite 
so  as  to  be  enforced,'  and  it  will  be  sufficient  if  it  is  signed 
only  by  a  majority  of  the  arbitrators.^    The  decision  of  a 

1 0.  Code,  sec.  5607.  5  strum  v.  Cunningham,  3  O.  286 ; 

2  Solomons  v.  McKinstry,  13  Johns.  Darling  v.  Darling,  16  Wis.  644.    See 
27 ;  Adams  v.  Adams,  8  N.  H.  82 ;  Kreiss  v.  Hotaling,  96  Cal.  617. 
Leslie    v.    Leslie,    24   Atl.   Rep.    319  ^pierce  v,  Kirby,  21  Wis.  124 

(N.  J.  Ch.,  1892).  7  Thomas  \.  Molier,  3  O.  266;  Win- 

3  McCall  V.  McCall,  36  S.  C.  80 ;  15  disch  v.  Hilderbrandt,  5  W.  L.  B.  415 ; 
S.  E.  Rep.  348  (1892);  Leslie  v.  Les-  Herbst  v.  Haganaers,  17  N.  Y.  S.  58; 
lie,  supra.  See,  also.  Palmer  v.  Van  62  Hun,  568;  137  N.  Y.  290;  Odum 
Wyck,  21  S.  W.  Rep.  761  (Tenn.,  1893).  v.  Railroad  Co.,  10  S.  Rep.  222;  94 
As  to  boundary  line,  see  Pearson  v.  Ala.  488. 

Barringer,  109  N.  C.  398.    The  powers  8  o.  Code,   sec.   5607.     This  is  not 

of  arbitrators  are  derived  from  the  the    universal  rule.     Leavitt   v.  In- 

subraission    and     measured     by    it.  vestment  Co.,  54  Fed.  Rep.  439 ;  Wal- 

Weaver  v.  Powell,  148  Pa.  St.  372.  ters  v.  Pettit,  12  Pa.  Co.  Ct.  R  431 ; 

^  Hamilton  v.  Hamilton,  27  111.  158 ;  Weaver  v.  Powell,  148  Pa.  St  372. 
1  lorton  V.  Wilde,  8  Gray,  425 ;  Fink 
V.  Fink,  8  la.  313. 


192  AKlUTKATIoN    AND    AWARD.  [§J   211.   212. 

court  cannot  be  treated  as  an  award,'  although  it  may  be  so 
considered  if  the  court  had  no  jurisdiction.- 

Sec.  211.  Form  of  award. — 

Be  it  known  that  we,  the  undersigned,  E.  F.,  G.  H.  and  I.  J., 
were  duly  appointed  arbitrators  as  to  certain  matters  in  con- 
troversy between  A.  B.  and  C.  D..  executed  and  submitted  by 
them  in  writing,  and  on  the day  of ,  18 — ,  in  pur- 
suance of  said  submission,  we,  the  said  arbitrators,  met  at , 

in  the  township  of  ,  in county,  state  of ,  and 

after  being  duly  qualified,  said  A.  B.  and  C.  D.  being  present 
[o7%  in  person  by  their  attorney.  L.  M.  and  N.  O.,  etc.],  we 
proceeded  to  hear  the  proofs  and  allegations  of  the  said  par- 
ties and  adjourned  to  meet  at  the  same  place  on  the day 

of ,  IS — ,  and  at  the  time  and   ])lace  last  mentioned  we 

ao-ain  met,  the  parties  being  present,  and  after  being  fully  ad- 
vised in  the  matter  we  find  [set  out  the  findings  in  detail,  all 
matters  of  dispute  referred  to]. 

We  further  find  that  there  is  no  other  matter  of  controversy 
between  the  parties  \to  le  used  when  there  is  a  reference  of  all 
onatters  in  dis]jute\. 

We  therefore  award  to  the  said  A.  B.,  to  be  paid  by  the 

said  C.  D.,  the  sum  of dollars  [or  state  the  relief  the  jyar- 

ties  are  entitled  to  under  the  suhynission  and  findings\  and  the 
fee  of  the  arbitrators  and  witnesses  and  of  the  justice  \or,  judge] 

administering  oaths,  amounting  to dollars,  is  to  be  paid 

by  \here  specif y  party\. 

In  witness  whereof  we  have  hereunto  set  our  hands  this 
day  of ,  IS—. 

Sec.  212.  Enforcement  of  award. —  If  either  of  the  parties 
fail  or  refuse  to  comply  with  an  award,  the  other  may  file  it, 
together  with  the  submission  or  arbitration  bond,  in  the  court 
named  therein,  or,  if  none  is  named,  then  in  the  court  of  com- 
mon pleas.^  And  the  court  shall,  if  no  legal  exceptions  are 
made  or  taken  thereto,  enter  judgment  thereon,  as  upon  the 
verdict  of  a  jury.*  If  it  directs  the  performance  of  any  act  or 
thing  other  than  the  payment  of  money,  a  party  who  disobeys 
it  may  be  punished  as  for  contempt,  as  the  nature  of  the  case 
requires.'  Any  objections  to  an  award  should  be  filed  at  the 
term  of  court  to  which  the  submission  and  award  are  flled,^ 
and  judgment  may  be  rendered  thereon  at  the  same  term." 

1  Curtis  V.  Lynch.  19  O.  S.  392.  6  0.  Code,  sec.  5610.  • 

2  Bradley  v.  Sneatli,  6  O.  490.  «  Commissioners  v.  Carey,  1  0.  S. 
»0.  Code,  sec.  5608.                               463. 

< O.  Code,  sec.  5609.  'Gibbon  v.  Dougherty,  10  O.  S.  365. 


§§  213,  214.]  AKBITRATION   AND    AWARD.  193 

The  right  to  enforce  a  common-law  award  is  clear,  and  the 
fact  that  it  may  be  enforced  in  another  mode  constitutes  no 
bar.^  The  statutory  remedy  does  not  affect  this  .common-law 
right.  A  common-law  arbitration  has  no  judicial  force,  and  con- 
stitutes neither  a  judgment  nor  a  verdict  of  a  jury.  A  failure 
or  refusal  to  perform  may,  however,  create  a  good  cause  of 
action,  or  constitute  a  good  defense  in  a  suit  on  the  same  sub- 
ject-matter. An  independent  suit  must  be  brought  thereon 
as  in  other  cases."  In  pleading  an  award  the  fact  of  a  mutual 
submission  must  be  averred.^  The  submission  need  not  be  set 
out  at  length,  though  it  must  clearly  appear  that  it  was  valid 
and  binding.*  Only  so  much  of  the  award  as  is  necessary  to 
support  the  plaintiff's  claim  need  be  alleged,  and  any  extrinsic 
matters  necessary  to  enable  the  court  to  ascertain  the  true 
object  of  the  submission.* 

Sec.  213.  Petition  on  bond  given  in  a  common-law  arbi- 
tration.— 

[Captio7i.'] 

Plaintiff  states  that  on  the day  of  ,  18 — ,  the  de- 
fendant executed  to  plaintiff  a  bond  conditioned  to  abide  the 
award  of  E.  F..  G.  H.  and  I.  J.  upon  certain  matters  in  dispute 

between  the  plaintiff  and  defendant  C.  D.     That  on  the 

day  of  ,  18 — ,  said  arbitrators,  having  previously  under- 
taken said  arbitration,  duly  made  and  published  their  award 
in  the  matter  submitted,  whereby  they  awarded  that  the  de- 
fendant 0.  D.  pay  the  plaintiff  dollars.     [Give  substance 

of  award.]  That  the  said  C.  D.  has  failed  [and  refused]  to 
abide  said  award,  and   has  failed  [and  refused]  to  pay  the 

plaintiff  said  sum  of  dollars  as  awarded,  and  the  same 

is  now  due. 

Sec.  214r.  Answer  of  invalidity  of  award — Common  law. 

[Caption.l 

The  defendant  for  his  answer  says  that  he  admits  that  on 
or  about  the day  of ,  18 — ,  the  ])laintiff  and  defend- 
ant submitted  certain  matters  in  controversy  between  them 
to  the  arbitration  of  E.  F.,  G.  H.  and  I.  J.,  who  were  to  no- 
tify the  parties  of  the  time  and  place  at  which  they  would 
receive  the  testimony  of  said  parties  or  their  witnesses,  and 

therefore  on  or  before  the day  of  ,  18 — ,  filed  their 

award.     That  said  arbitrators  did  not  notify  the  defendant 

*  Swasey  v.  Laycock,  1  Handy,  334.        *  Morse  on  Arb.  &  A.,  pp.  584-5. 
2Childs  V.  Updyke,  9  O.  S.  333;        5  Morse    on    A.  &  W.,  pp.   586-7; 
Males  V.  Lowenstein,  10  O.  S.  512.  Blauchard  v.  Murray,  15  Vt  548. 

STullis  V.  Sewell,  3  O.  510-13. 
13 


194  ARBITRATION    AND   AWARD.  [§§  215,  216. 

of  the  time  and  place  where  they  would  meet  to  hear  the 
matters  submitted,  nor  did  this  defendant  have  an  opportunity 
to  be  heard  in  his  defense  before  them ;  that  the  defendant 

is  informed  that  on  or  about  the day  of  ,  18 — ,  said 

arbitrators  met  at ,  and  in  the  presence  of  the  plaintiff 

examined  several  witnesses  in  regard  to  the  matter  submitted 
to  them,  and  thereafter  filed  the  alleged  award,  but  the  de- 
fendant had  no  opportunity  to  be  heard  and  said  proceedings 
were  heard  without  his  knowledge  or  consent;  that  the  de- 
fendant at  the  time  of  the  submission  to  said  arbitrators  had 
and  now  has  a  good  defense  to  the  matter  so  submitted,  and 
if  an  opportunity  had  been  given  him  to  produce  his  wit- 
nesses he  would  have  been  entitled  to  an  award  in  his  favor» 

Note.—  See  Brazill  v.  Isham.  12  N.  Y.  9. 

Sec.  215.  Answer  setting  up  award  —  Statutory. — 

ICaption.'] 

Defenthmt  for  his  answer  says  that  after  the  making  of  the 
said  several  promises  in  the  said  complaint  mentioned,  and 

before  the  commencement  of  this  action,  and  on  the day 

of ,  18 — .  said  plaintiff  and  the  said  defendant  submitted 

themselves  as  required  by  law  by  an  instrument  in  writing 
duly  acknowledged,  and  thereby  all  things  well  and  truly  to 
keep,  obey  and  perform  the  award,  arbitrament  and  final  de- 
termination of  E.  F.,  G.  H.  and  I.  J.,  arbitrators  individually 
elected  and  named  as  well  on  the  part  and  behalf  of  the 
p'aintiff  as  of  the  defendant,  to  arbitrate,  award  and  deter- 
mine all  manner  of  action  and  actions,  cause  and  causes  of 
action,  and  of  all  controversies  and  matters  whatsoever  at 
any  time  heretofore  had,  made,  committed  or  depending  by 
and  between  said  parties  or  either  of  them,  so  that  the  said 
award  should  be  made  by  the  said  arbitrators  under  their 
hands  and  ready  to  be  delivered  to  the  parties  in  difference, 
or  such  of  thern  as  should  desire  the  same,  on  or  before  the 
day  of ,  then  next.  [Or  insert  a  copy  of  the  instru- 
ment, or  describe  the  particular  matter  suhraitted.'] 

Sec.  216.  Award  may  be  set  aside. —  If  legal  defects  ap- 
pear in  an  award  or  other  proceedings,  or  if  it  be  made  to 
appear  on  oath  at  the  term  of  the  court  at  which  the  award 
and  arbitration  bond  are  filed,  that  the  award  was  obtained 
by  fraud,  corruption  or  other  undue  means,  or  that  the  arbi- 
trators or  umpire  misbehaved,  the  court  may  set  aside  the 
award,  and  the  matters  submitted  shall  be  retained  by  the 
court  for  trial  as  upon  appeal.  The  court  shall  direct  who 
shall  be  plaintiff  and  who  shall  be  defendant  in  the  action, 
and  such  proceedings  shall  thereafter  be  had  therein,  and  such 


§  216.]  ARBITRATION   AND    AWARD.  195 

pleadings  filed  as  in  a  civil  action ;  and  the  court  may  make 
SQcb  order  as  to  costs  in  the  premises,  or  such  other  order  on 
the  award,  as  it  deems  just  and  right.'  An  award  may  also  be 
set  aside  by  agreement  of  parties.-  It  will  be  presumed  that 
the  arbitrators  have  acted  within  their  authority,  and  the 
burden  is  therefore  upon  the  complainant.^  An  award  may 
be  set  aside  where  one  of  the  arbitrators  was  biased  or  inter- 
ested,'' or  is  related  to  one  of  the  parties ;  ^  but  an  objection 
based  upon  relationship  should  be  made  before  the  award,  if 
known.^  It  may  also  be  set  aside  upon  equitable  grounds,  or 
for  uncertainty,"  or  for  error  of  law  appearing  upon  its  face. 
Where  it  is  sought  to  set  an  award  aside  on  the  ground  of 
fraud,  following  the  well-known  principle  of  pleading  fraud, 
the  facts  constituting  the  same  must  be  fully  set  forth."  It 
cannot  be  set  aside  because  of  a  mistake,  as  the  remedy  in 
such  cases  is  by  appeal  or  error.'''  If  an  award,  though  not  a 
good  statutor}^  one,  yet  is  a  valid  common-law  award,  the  court 
should  deny  a  motion  to  set  it  aside.'' 

An  award  void  in  part  and  good  in  part  may  be  upheld  un- 
less the  objectionable  part  is  so  dependent  upon  that  which 
is  unobjectionable  as  to  be  inseparable  therefrom.'-  In  order 
that  a  part  of  an  award  may  stand,  and  that  which  is  bad  be 
rejected,  that  portion  which  is  bad  must" be  so  independent 
that  it  may  be  rejected  without  in  any  way  affecting  that 
which  is  good,  and  will  not  in  any  w-ise  work  injustice  to  any 
of  the  parties  by  rejecting  it ;  otherwise  the   whole  award 

1  R  S.,  sec.  5611.  etc.  R.  R.  Co.  v.  Scruggs,  50  Miss.  285 ;. 

-Rogers  V.  Weaver.  W.  174.  Mickle   v.   Thayer,    14    Allen,    114; 

3  Solomon  v.  McKiustrey,  13  John.  Mitchell  v.  De  Schaamps,  13  Rich.  9 ; 

27.  Conrad  v.  Johnson,  20  Ind.  431. 

*W.  F.  Seminary  v.  Blair,  1  Djsn.  ^Bowden  v.  Crow,  21  S.   W.  Rep. 

:570.     See  Hart  v.  Kennedy,  47  N,  J.  612   (Tex.,    1803).     As  to  fraud,  see 

Eq.  51 ;  20  Atl.  Rep.  20.  Ormsby  v.  Bakewell,  7  O.  (1st  Pt.)  99. 

5  Davis  V.  Forshee,  34  Ala.  107.  lo  Appeal  of  Morgan,  110  Pa.  St.  271. 

«Robbv.  Brauchman,  38  O.  S.  423;  I'Kreiss   v.  Hotaling,  96  Cal.  617; 

Pearson  v.  Barringer,  109  N.  C.  398.  Fink  v.  Fink.  8  Iowa.  313. 

^Bryraer  v.  Clark,  20  O.  S.  231;  12  Banks  v.  Adams,  i3  Me.  259;  Par- 
Thomas  V.  Molier,  3  O.  266.  malle  v.  Allen,  32  Conn,  lib ;  Walker 

8  Swasey  V.  Laycock,  1  Handy,  334.  v.    Walker,   28    Ga.    UO;    Cna.se    v 

Arbitrators  have  the  power  to  decide  Strain,  15  N.  H.  535;  ^'atsfja  f.  jLarly- 

upon  both   the  law   and  the   facts,  wine,  14  Ind.  256. 
Crabtree  v.  Green,  8  Ga.  8;  Memphis, 


196  ARBITKATION    AND    AWARD.  [§§  217,  218. 

must  fall.^  If  an  unlawful  act  be  required  to  be  performed 
by  either  of  the  parties,  or  one  which  is  uncertain  or  impossi- 
ble, the  award  will  be  void.^  Where  several  matters  are 
awarded,  and  the  award  is  entire  and  yet  in  its  nature  indi- 
visible, it  is  void  in  toto? 

Sec.  217.  Objections  to  award. — 

In  the  matter  of  the  arbitration  between  A.  B.  and  C.  D., 
0.  D,,  one  of  the  parties  to  the  award  in  the  above-enti- 
tled proceedings,  in  compliance  with  the  rule  of  the  court, 
heretofore  entered  objections  to  the  confirmation  of  said 
award  and  the  rendition  of  the  judgment  thereon,  for  the  fol- 
lowing reasons : 

1st.  That  the  submission  to  the  said  arbitrators  was  ob- 
tained by  fraud  in  this  \state  particularly  acts  of  fraud  re- 
lied upon]. 

2d.  That  said  award  was  obtained  by  fraud,  [corruption, 
]iartiality  in  the  arbitrators,  E.  F.,  G.  H.,  I.  J.,  or  any  one  of 
them]  in  this  [state  the  facts']. 

3d.  That  said  arbitrators,  E.  F.,  G.  H.  and  I.  J.,  were  guilty 
of  misconduct  [state  the  cause  pat'ticularly,  as,  ref  using  to  post- 
pone a  hearing  to  a  later  date  upon  sufficient  ground  shown, 
or  refusing  to  hear  pertinent  evidence  to  the  controversy,  or 
ajiy  other  cause],  by  which  his  rights  were  materially  preju- 
diced. 

6th.  That  said  arbitrators,  E,  F.,  G.  H.  and  I.  J.,  exceeded 
their  powers  under  said  submission  in  this  [state  the  facts  re- 
lied upon]. 

7th.  That  said  arbitrators,  E.  F.,  G.  H.  and  I.  J.,  so  imper- 
fectly executed  their  powers  that  a  mutual,  final  and  definite 
award  on  the  subject-matter  was  not  made  [state  the  facts  to 
show  this  allegation].  C.  D. 

Sec  318.  Coiiflrmation  of  award  and  judgment  thereon. 

[Title.] 

!Now  comes  A.  B.,  the  above-named  party,  by  his  attorney, 
J.  T.,  and  comes  also  C.  D.,  the  above-named  party,  by  T.  U., 
his  attorney,  and  the  said  C.  D.,  in  the  discharge  of  the  rule 
to  show  cause  why  the  award  should  not  be  confirmed  and 
judgment  rendered  thereon,  files  his  objections  to  said  award 
as  follows  [here  itisert  objections],  which  objections  are  sub- 
mitted to  the  court  for  a  hearing.  And  the  court,  having 
heard  the  evidence  and  argument  of  counsel,  overrules  the 

1  Philbrick  v.  Preble,  18  Me.  255 ;  2  Aubert  v.  Maze,  2  B.  &  P.  371 ; 

Chase  v.  Strain,  15  N.  H.  535 ;  Gibson  Simmonds  v.  Swain,  1  Taunt.  549. 

V.  Powell,  5  Sm.  &  M.  712-722 ;  Dar-  3  Cook  v.   Carpenter,   84  Vt  121 ; 

ling  V.  Darling,  16  Wis.  644 ;  Rixford  Black  v.  Hickey,  48  Me,  545 ;  Hazen 

V.  Nye,  20  Vt.  133.  v.  Addis,  14  N.  J.  Law,  333. 


§  219.]  AKBITKATION    AND    AWARD.  197 

same,  to  which  the  said  C.  D.  excepts.  It  is  therefore  ad- 
judged and  decreed  that  the  said  award  be  and  the  same  is 
hereby  in  all  things  confirmed  and  the  court  renders  judg- 
ment thereon.     It  is  therefore  considered  and  adjudged  that 

A.  B.  recover  of  and  from  C.  D.  the  sum  of dollars  and 

cents,  as  awarded  by  said  arbitrators,  and  that  said  A.  B. 

recover  from  C.  D.  the  cost  of  this  proceeding  in  this  court, 

taxed  at  dollars  and  cents.     [And  that  said  C.  D. 

pay  the  sum  of  dollars  and cents  accrued  for  the 

fees  and  expenses  of  the  arbitration,] 

Sec.  3 1 9.  Entry  setting  award  aside. — 

[Title.-] 

Comes  now  A.  B.,  by  his  attorney,  J.  T.,  and  comes  also 
C.  D.,  by  his  attorney,  T.  U.,  and  files  his  objections  to  the 
compromise  of  the  award  rendered  by  E.  F..  G-.  H.  and  I.  J., 

dated  the  day  of  ,  18 — ,  as  ruled  by  this  court, 

which  objections  are  as  follows:  [Here  insert  objections.'] 

The  court,  after  hearing  the  evidence  and  argument  of  coun- 
sel, finds  for  said  C.  D.,  that  said  objections  are  proved  and 
sustained  and  that  the  same  are  true.  It  is  therefore  hereby 
ordered,  adjudged  and  decreed  that  said  award  be  and  the 
same  is  hereby  found,  declared  void  and  set  aside,  to  which 
ruling  the  said  A.  B.  excepts.  It  is  also  adjudged  that  said 
C.  D.  recover  of  and  from  A.  B.  the  costs  of  this  proceeding 

in  court,  taxed  at dollars  and cents.     [And  also  all 

the  costs  of  arbitration,  taxed  at dollars  and cents.] 


CHAPTER  17. 


ASSAULT  AND  BATTERY  —  CIVIL  ACTION  IN  DAMAGEa 


Sec.  220.  Will  lie  when. 

221.  The  petition. 

222.  Gt-aeral  form    of    petition 

for  assault  and  battery. 

223.  Petition   for   assault  upon 

servant,  son  or  daughter. 

224.  Petition  by  female  for  as- 

sault with  intent  to  have 
unlawful  intercourse. 

225.  Petition  by   an   infant   by 

next  friend. 

226.  Petition  by  husband  for  as- 

sault upon  his  wife. 

227.  Answer  —  General   denial. 

228.  Answer    pleading    self-de- 

fense. 

229.  Answer     denying    assault 

with  intent  to  have  un- 
lawful intercourse. 


Sec.  230.  Liability  of  railway  com- 
panies for  wilful  and  ma- 
licious conduct  of  and  as- 
saults by  its  servants  upon 
passengers. 

231.  Same    continued  —  Adju- 

dications of  courts. 

232.  Petition  for  wrongful   re- 

moval of  passenger  from 
street-car. 

233.  Petition  for  ejection  from 

railroad  car  and  for  as- 
sault 

234.  Answer    of    railway  com- 

pany that  plaintiff  was 
ejected  for  non-payment 
of  fare. 


Sec.  220.  Will  lie  when. —  "Whenever  there  is  ground  for 
a  criminal  proceeding  for  an  assault  and  battery,  the  part}' 
injured  may  also  prosecute  a  civil  action  in  damages  for  any 
injury  which  he  may  sustain.  In  each  proceeding,  criminal 
or  civil,  the  plea  of  self-defense  is  the  same ;  but  if  the  defend- 
ant was  the  aggressor,  he  of  course  cannot  invoke  the  doctrini' 
of  self-defense;  and  the  party  who  repels  the  aggressor  must 
only  use  such  force  as  the  necessities  of  the  case  may  require 
and  must  not  inflict  excessive  injuries  on  his  assailant.^  The 
danger  apprehended  by  the  party  assailed  must,  however,  be 
manifest  and  apparent,  and  there  must  be  no  other  means  of 
protection  available  in  order  to  justify  an  assault.^    Instigators, 

iThompason  v.  Gray.  82  Ala.  291:  2Keyes  v.  Devlin.  3  E.  D.  Smith, 
3  S.  Rep.  38  (1887);  People  v.  Will-  518.  He  may  act  on  appearances, 
iaras,  32  Cal.  280.  Jamison  v.  Moslev.  69  Miss.  47a 


§  220.]  ASSAULT    AND    BATrERY.  199 

advisers  of  an  assault,  an  abettor,  or  all  who  participate 
therein,  are  liable  for  damages  occasioned  thereby  even  though 
they  are  not  present.^ 

Where  a  person  has  come  into  the  possession  of  property 
he  may  use  such  force  as  may  seem  to  him  necessary  to  pre- 
vent another  from  entering  or  interfering  with  the  same,- and 
the  owner  of  a  house  may  be  justified  in  using  the  necessary 
force  to  defend  his  possession.'  One  who  disturbs  a  religious 
meeting  and  interrupts  its  order  and  decorum  may  be  re- 
moved therefrom  by  the  use  of  such  force  as  may  be  neces- 
sary; and  it  is  not  essential  that  the  disturbance  be  wilful.'' 

An  action  for  damages  for  assault  and  battery  is  not  barred 
even  though  the  parties  have  foughj,  by  agreement ;  but  such 
a  fact  must  be  shown  in  mitigation  of  damages,  and  this, 
too,  under  a  general  denial,^  and  the  agreement  may  be  in- 
ferred from  the  conduct  of  the  parties;**  and  the  rights  of 
each  combatant  to  damages  may,  under  the  code,  be  deter- 
mined and  measured  in  the  same  action.'  It  is  upon  the  same 
principle  of  public  policy  that  one  who  is  the  first  assailant 
in  a  fight  may  recover  of  his  antagonist  for  injuries  inflicted 
by  the  latter,  where  he  oversteps  what  is  reasonably  neces- 
sary to  his  defense,  and  unnecessarily  injures  the  plaintiff;  or 
that,  with  apparent  want  of  consistency,  permits  each  to  bring 
an  action  in  such  cases  —  the  assaulteil  party  for  the  assault  first 
committed  upon  him,  and  the  assailant  for  the  excess  offeree 
used  beyond  what  was  necessary  for  self-defense.^  It  has  been 
held  that  a  dealer  in  merchandise  on  the  instalment  plan  is 
responsible  in  damages  for  an  assault  and  battery  committed 

I  Bell  V.  Miller,  5  O.  250 ;  Willi  v.  Thompson,  59  Wis.   540 ;  Common- 
Lucas,   110  Mo.  219  (1892);  State  v.  wealth   v.   Collberg.   119   Mass.    350. 
Orick,  106  Mo.  Ill :  Cooper  v.  Johu-  The  fact  that  it  was  voluutaiy  may- 
son,  81  Mo.  48;i  be  shown   to  keep    dowu    punitive 
■-i  Bliss  V.  Johnsou.  73  N.  Y.  529.  damages.     Grottou    v.    Glidden,    94 
3  Corey  v.  People.  45  Barb.  262.  Me.  589 ;  24  Atl.  Rep.  1008.   See,  also, 
^  Wall  V.  Lee.  34  N.  Y.  141.  White  v.  Barnes,  112  N.  C.  323;  16 
■'  Barholt  v.  Wright.  45  O.  S.  177 ;  S.  E.  Rep.  922. 
2    Greenl.    Ev..  sec.   85 ;    Logan    v.  » State  v.  Foy,  Tapp.  71. 
Austin,  1  Stewart,  476  ;  Bell  v.  Haus-  '  Swan's  P.  &  P.  259,  note  a. 
ley,   3  Jones  (N.  C),  131  ;  Adams  v.  « Barholt  v.  Wriglit.  45  O,  S.  177- 
Waggoner.    33    Ind,    531 :    Shay    v.  181.  and  cases  cited. 


200  ASSAULT    AND    BATTEKY.  [§  221. 

by  a  servant  in  gaining  possession,  though  in  violation  of  in- 
structions.^ 

Sec.  221.  The  petition. —  An  injury  by  assault  and  bat- 
tery being  one  to  the  person  is  therefore  civil,  and  though  com- 
mitted at  the  same  time  by  the  same  person  upon  more  than 
one,  each  person  who  has  suffered  injury  must  bring  a  separate 
action.-  And  the  petition  must  state  only  the  facts  which 
constitute  the  cause  of  action.  The  fact  that  the  act  which 
causes  the  injury  is  of  itself  unlawful,  or  the  motive  or  intent 
of  the  wrong-doer  so  far  as  an  action  for  damages  is  con- 
cerned, is  immaterial.  And  so  in  an  action  for  damages  for 
an  assault  and  battery,  it  is  not  necessary  to  aver  any  malice 
on  the  part  of  the  defendant,  but  only  the  facts  from  which  it 
may  be  inferred,  as  such  evidence  may  be  admitted  under  an 
allegation  that  the  assault  was  made  without  provocation  and 
with  great  force  and  violence,  as  tending  to  show  the  charac- 
ter of  the  conduct  and  exhibit  and  explain  the  motive  of  the 
defendant  to  enable  the  jury  to  determine  the  question  of  ex- 
emplary damages.^ 

Where  a  petition  alleges  that  the  defendant  maliciously  as- 
saulted plaintifif  with  a  dangerous  knife,  cut,  beat  and  wounded 
him,  with  intent  to  kill  and  murder,  and  contains  a  prayer  for 
general  damages,  evidence  of  all  facts  showing  damages,  such 
as  is  paramount  to  health,  which  naturally  results  from  the 
act  complained  of,  may  be  admitted  thereunder,  and  it  is  not 
necessary  in  such  case  to  aver  any  special  matters  which 
may  be  the  legal  and  natural  consequences  of  a  tortious  act ; 
for  under  a  general  prayer  all  acts  and  circumstances  giving 
character  to  the  assault  may  be  shown,  and  all  damages  which 
naturally  How  from  the  unlawful  act  may  be  recovered.* 

Doctor  bills,  although  paid  by  a  third  person,  may  be  re- 
covered  as   resulting   damages,    even   though   not   specially 

1  McClung  V.  Dear  borne,  134  Pa.  N.  Y.  440.  See  Shea  v.  Railway  Co., 
St.  396 ;  19  Atl.  Rep.  698.  63  N.  Y.  ISO. 

2  Bliss  on  Code  Pldg.,  sec.  26.  ■*  Stevenson  v.  Morris,  37  O.  S.  10; 

3  Klein  v.  Thompson,  19  O.  S.  569,  Barzezinski  v.  Tierney,  60  Conn.  55; 
573(1869);  Hilbertv.Doebricke,  8  W.  Roberts  v.  Masons,  10  O.  S.  277; 
L.   B.   268;    Elfers  v.   Wooley,    116  Quimby  t.  Smith,  31  O.  S.  529. 

N.   Y.   294:  Boltz  v.    Blackmar,   61 


§§  222-224.]  ASSAULT  and  battery.  201 

averred ; '  nor  is  it  necessary  to  alleo^e  that  the  beating;  was 
unlawful ;  2  but  in  order  that  a  defendant  may  avail  himself 
of  the  defense  that  the  assault  was  committed  by  way  of  self- 
defense,  he  must  specially  plead  the  same.'  He  cannot,  how- 
ever, claim  the  benefit  of  the  doctrine  of  contributory  negli- 
gence, as  that  has  no  application  whatever  to  an  action  of  this 
character.''  It  is  not  necessary,  therefore,  to  allege  that  the 
plaintiff  was  without  fault.'  The  plaintiff  in  an  action  for 
damages  for  an  assault  and  battery  may  have  an  order  of  at- 
tachment issued  and  levied  upon  the  defendant's  property, 
but  the  affidavit  must  show  that  the  obligation  was  a  criminal 
one.^ 

Sec.  222.  General  form  of  petition  for  assault  and  bat- 
tery.— 

[Caption.'] 

That  the  said  defendant,  heretofore  and  on  the day  of 

,  18 — ,  at [with  force  and  arms],  made  an  assault  on 

the  plaintiff,  and  then  and  there  beat,  bruised,  wounded  and 

ill-treated  him,  to  the  damage  of  the  plaintiff  of dollars, 

for  which  sum  plaintiff  asks  judgment. 

Sec.   223.    Petition  for  assault  upon  servant,  son    or 
(laughter.— 

\0(^J>tion.] 

rlaintiff  alleges  that  one  C.  D.  was  on  the dav  of 


18—,  and  still  is,  in  his  employ  as  a  servant.  That  defendant 
on  said  date  did  unlawfully  make  an  assault  upon  his  said  serv- 
ant C.  D.,  and  did  beat,  wound  and  injure  him,   bv  reason 

whereof  said  C.  D.  became  sick,  and  has  been  unable*^for 

months  to  perform  any  work,  plaintiff  being  thereby  deprived 
of  his  services  during  said  period,  and  has  thereby  sustained 

damages  in  the  sum  of  $ ,  for  which  sum  he  asks  judgment 

against  said  defendant. 

Sec.  224.  Petition  by  female  for  assault  with  intent  to 
have  unlawful  intercourse. — 

The  said  plaintiff  for  cause  of  action  says  that  on  or  about 
t-he day  of ,  IS — ,  at  or  near  ,  in  said  county, 

1  Kleia  v.  Thompson,  19  O.  S.  569.  meltz  v.  Kelley,  72  Ind.  442 ;  White- 
See  O'Leary  v.  Rowland,  31  Mo.  117.  head  v.  Hathaway,  85  Ind.  85. 

2Schlosser  \-.  Griffith,  125  Ind.  431;  5  Myers  v.  Myers,  3  Ind.  App.  226. 

s.  C,  25  N.  E.  Rep.  459.  6  Creasser  v.  Young,  310.    S.   57 

:*  Myers  v.  Moore,  3  Ind.  App.  226.  (1856);  Sturdevant  v.  Tuttle.  21  O.  S. 

••Ruter  V.  Fay,  46  la.  132;    Sten-  111;  Kirk  v.  Whittaker,  22  O.  S.  115. 


202  ASSAULT    AMD    BATTERY.  [§g  i;25-228, 

the  said  defendant, ,  unlawfully  assaulted  and  beat 

the  said  plaintiff,  with  intent  then  and  there  to  have  unlawful 
intercourse  with  her  against  her  will,  to  the  damage  of  plaint- 

itf  in  the  sum  of dollars. 

^Wherefore  plaintiff  asks  judgment  against  said  defendant 
in  the  sura  of dollars. 

Sec.  225.  Petition  hy  an  infant  by  next  friend. — 

Now  comes ,  an  infant,  by  his  next  friend, 

-,  and  for  a  cause  of  action  says  that  on  or  about  the 


day  of ,  IS — ,  at ,  the  defendant, ,  assaulted 

and  beat  the  plaintiff. ,  to  his  damage  in  the  sum  of 

dollars,  for  which  he  asks  damages. 

Note. —  From  Banks  v.  Thompson,  unreported  case,  No.  1745. 

Sec.  226.  Petition  by  husband  for  assault  upon  his  wife. 

[  Caption.'] 

Plaintiff  alleofes  that  he  was  married  to  C.  D.  on  the 


•day  of ,  IS — ,  with  whom  he  has  since  been  and  is  now- 
cohabiting  as  his  wife.     That  the  defendant  did  on  the  

day  of ,  18 — ,  unlawfully  assault  his  said  wife  C.  D.,  and 

did  beat,  wound  and  injure  her.  thereby  causing  her  to  be- 
come sick  and  unable  to  perform  her  accustomed  household 

duties  for  ,  whereby  plaintiff  was  deprived  of  her  said 

services,  and  has  sustained  damages  in  the  sum  of  $ ,  for 

which  he  asks  judgment  against  defendant. 

Note.— If  husband  has  sustained  any  special  damages  they  should  be 
pleaded.  Uertz  v.  Singer  Mfg.  Co.,  35  Hun,  116.  See  chapter  on  Husband 
and  Wife. 

Sec.  227.  Answer  — General  denial.— 

\^Ca2)t{o7i.'] 

Now  comes  the  said  defendant, ,  and  for  answer 

to  the  plaintiff's  petition  filed  herein  says  that  he  denies  each 
and  every  allegation  contamed  therein. 

Note.— Under  the  plea  of  "not  guilty  "  the  defendant  may  introduce 
evidence  of  mitigating  circumstances  to  reduce  the  damages.  Jamison  v. 
Moseley,  69  Miss.  484  (1891). 

Sec.  228.  Answer  pleading  self-defense. — 

Defendant  says  that  at  the  time  mentioned  in  plaintiff's  pe- 
tition, and  just  before  the  assault  therem  complained  of,  the 
said  plaintiff  made  an  assault  upon  the  defendant,  and  that 
the  defendant,  in  defending  himself  against  the  said  assault  so 
made  upon  him  by  said  plaintiff,  necessarily  and  unavoidably 
beat  and  bruised  said  plaintiff,  but  only  so  far  as  was  neces- 
sary to  repel  the  as.sault  so  made  upon  defendant. 

Note. —  Self-defense  must  be  sperially  pleaded.  Myers  v.  Moore,  28  N.  E. 
Rep.  724;  3  Ind.  App.  226.     A  defendant  may  be  justified  in  acting  on  ap- 


|§  229,  230.]  ASSAULT  and  battery.  2t)3 

pearances.  Jamison  v.  Moseley.  69  Miss.  478.  Abusive  words  will  not 
justify  an  assault.  Willey  v.  Carpenter,  64  Vc.  212;  23  AtL  Rep.  630  ;  Tat- 
nall  V.  Courtney.  6  Houst  (Del.)  434. 

Sec.  229.  Answer  denying  assault  with  intent  to  have  un- 
lawful intercourse. — 

Xow  comes  the  said  defendant  G.  W.  H.,  and  for  answer 
to  the  petition  of  the  said .  plaintiff,  tiled  herein,  de- 
nies that  at  the  time  and  place  stated  in  the  petition,  or  at 
any  other  time  or  place,  he  unlawfully  assaulted  the  said 
plaintiff  with  the  intent  to  have  unlawful  sexual  intercourse 
with  her  against  her  will.  And  he  denies  that  he  ever  had 
any  intent  or  desire,  unlawfully  or  otherwise,  to  have  sexual 
intercourse  with  said  plaintiff  against  her  will  or  otherwise. 
And  he  denies  each  and  everv.  all  and  singular,  the  allegations 
of  the  petition. 

Sec.  230.  Liability  of  railway  companies  for  wilful  and 
malicious  conduct  of  and  assaults  hy  its  servants  upon  pas- 
sengers.—  There  is  a  class  of  cases  arising  from  the  wilful 
and  malicious  conduct  of  the  servants  of  railway  companies, 
and  assaults  committed  by  them  upon  passengers,  which  may 
properly  fall  and  be  treated  in  this  chapter,  being  in  the  nature 
of  actions  for  the  recovery  of  damages  arising  by  reason  of 
assaults  of  the  servants  of  such  company.     According  to  some 
text-writers,  and  judging  from  the  manner  in  which  they  have 
arrayed  the  authorities   on  this  subject,  there  would  seem  to 
be  some  conflict  of  authority  upon  the  question  of  liability  of 
the  company  for  assaults  committed  by  its  servants.     In  one 
instance,  a  case  in  Ohio,  and  others  in  Xew  York  are  classed 
as  being  against  the  doctrine  that  there  is  any  liability  on  the 
part  of  the  companies  for  assaults  so  committed  by  their  serv- 
ants, upon  the  theory  that  such  acts,  being  wilful,  malicious 
and  criminal,  are  on  that  account  not  committed  while  acting 
within  the  scope  of  authority  of  the  company.     The  difficulty, 
however,  arises  by  confusing  the  principles  which  govern  the 
general  subject  of  master  and  servant  with  those  which  con- 
trol the  relations  between  railway  companies  and  their  servants, 
as  well  as  in  the  application  of  the  doctrine  of  the  liability  of 
the  master  for  the  acts  of  his  servants  while  acting  within  the 
scope  of  authority,  to  particular  cases.     It  is  quite  impossible 
that  a  decision  of  one  case  can  always  operate  as  a  general 
rule  applicable  to  others.    There  are  also  other  considerations 


204  ASSAULT   AND   BATTERY.  [§  230. 

to  be  weighed  in  defining  duties  of  railway  companies  to  their 
passengers,  and  their  liability  for  the  acts  of  their  servants 
toward  passengers,  in  contrast  to  the  duties  and  liabilities 
of  masters  and  servants  in  other  lines  of  service.  It  is  a  uni- 
versal rule  that  carriers  of  passengers  are  liable  for  unlawful 
and  wilful  acts  of  their  servants  acting  within  the  scope  of 
their  authority,  and  especially  within  their  instructions  and 
in  the  performance  of  a  duty  prescribed.^ 

It  is  equally  well-settled  law  that  railway  companies  must 
protect  their  passengers  from  violence,  insult  and  injury  from 
whatever  source  arising.^  This  rule,  however,  is  subject  to 
the  qualification  that  companies  cannot  be  charged  for  in- 
juries which  could  not  have  been  prevented  by  their  servants,' 
or  those  arising  from  an  unexpected  assault  by  another  pas- 
senger which  was  promptly  interfered  with  by  the  conductor.* 

It  being  the  duty  of  railway  companies  to  exercise  the 
highest  degree  of  care  towards  their  passengers,  they  are  es- 
pecially required  to  prevent  an  unlawful  assault  from  being 
made  by  their  servants.  It  is  said,  however,  that  the  rule 
which  governs  the  relations  between  master  and  servant 
generally,  namely,  that  no  liability  is  imposed  upon  the  mas- 
ter for  an  unlawful  and  wilful  assault  made  by  his  servant 
when  not  acting  within  the  scope  of  his  employment,  has  no- 
application  whatever  to  the  relation  of  carriers  of  passen- 
gers ; '"  that  the  railway  company  enters  into  a  contract  with 
its  passenger  to  carry  him  safely,  and  to  protect  him  from 
any  ill  treatment  or  violence  by  its  servant  or  third  person, 
and  is  therefore  liable  in  damages  for  an  assault  and  battery 

1  Rounds  V.  Railroad  Co.,  64  N.  Y.  2  Goddard  v.  Railroad  Co.,  2  Am. 

129 ;  Railroad  Co.  v.  Dunn,  19  O.  S.  Rep.  89 ;  Pittsburgh,  etc.  R.  R  Co.  v. 

162 ;  Passenger  Ry.  Co.  v.  Young,  21  Heines,  53  Pa.  St.  512 ;  Flint  v.  Trans- 

O.  S.  518 ;  Pittsburgh,  etc.  Ry.  Co.  v.  portation  Co.,  34  Conn.  554. 

Slusser,    19  O.   S.   157 ;  McKinley  v.  3  Randall  v.  Railway  Co.,  139  Pa. 

Railroad  Co.,  24  Am.  Rep.  748 ;  Moore  St  464. 

V.   Railroad    Co.,  64    Am.    Dec.  83 ;  *  Mullen  v.  Railroad  Co.,  46  Minn. 

Craker  v.  Railway  Co.,  36  Wis.  657;  474;  49  N.  W.  Rep.  249  (1891). 

17  Am.  Rep.  504 ;  Chicago,  etc.  R  R  ^  Stewart  v.  Railroad  Co.,  90  N.  Y.. 

Co.  V.  Flexman,  103  111.  546 ;  Schultz  588 ;  Carpenter  v.  Railroad  Co.,  97  N. 

V.  Railroad  Co.,   89   N.  Y.  247,  and  Y.  500;  Evansville,  etc.  Ry.    Co.  v. 

cases  cited ;   Jackman    v.    Railroad  McKee,  99  Ind.  521 ;  Steamboat  Co. 

Co.,  7  Am.  Rep.  448.  v.  Brockett,  121  U.  S.  645. 


§  231.]  ASSAULT   AND    BATTERY.  205 

committed  by  one  of  its  servants  upon  a  passenger,  whether 
it  arises  from  negligence  or  wilful  and  malicious  conduct.^ 
Sec.  231.  Same  continued  —  Adjudications  of  courts. — 

A  railway  company  may  make  rules  governing  the  manage- 
ment and  control  of  its  train,  and  prescribing  the  duties  of  its 
servants  with  reference  thereto,  which  will  not  be  interfered 
with  unless  unreasonable.  For  example,  it  may  make  a  rule  re- 
quiring a  conductor  to  eject  from  his  train  a  passenger  who 
refuses  to  produce  a  ticket  or  pay  his  fare  on  demand.'  Upon 
these  rules  the  liability  of  the  company  for  assault  committed 
by  its  servants  in  many  cases  hinges.  The  master  is  responsi- 
ble for  all  acts  of  his  servant  done  in  the  course  of  his  em- 
ployment under  express  or  implied  authority,  and  the  moment 
he  steps  beyond  that  line  the  servant  is  as  much  a  stranger  to 
his  master  as  any  third  person ;  but  he  is  invested  with  au- 
thorit}^  to  use  the  necessary  means  to  the  performance  of  the 
duties  assigned  him,  the  character  of  which  will  vary  according 
to  the  nature  of  the  duty  to  be  performed  and  attending  cir- 
cumstances.^ The  conductor  of  a  railway  train,  however,  in 
admitting  or  excluding  passengers  from  cars,  or  in  assigning 
them  to  places  after  they  have  entered,  acts  within  the  scope 
of  his  employment,  and  the  company  is  civilly  responsible, 
even  though  they  may  be  of  positive  malfeasance  or  miscon- 
duct,* and  is  liable  for  a  wrongful  ejection  of  a  passenger  by 
a  third  person  under  direction  of  the  conductor,*  So,  if  a  driver 
of  a  street-car,  having  authority  to  collect  fare  and  to  put  a 
person  off  for  the  non-payment  thereof,  ejects  a  passenger,  the 
company  will  be  liable  for  any  injury  which  may  result  from 
excessive  force  in  so  doing,  or  if  put  off  while  the  car  is  in  mo- 
tion.^   Even  though  a  passenger's  ticket  has  been  wrongfully 

1  Passenger  Ry.  Co.  v.  Young,  31  s  Railroad  Co.  v.  Wetmore,  19  0.  S. 
O.  S.  518 ;  Goddard  v.  Railroad  Co.,  57     131,  132. 

Me.  202 ;  s.  C,  2  Am.  Rep.  200 ;  Weed  <  Passenger  R.  R.  Co.  v.  Young,  21 

V.  Railroad  Co.,  17  N.  Y.  362 ;  S.  c,  O.  S.  524 ;  Railroad  Co.  v.  Wetmore, 

72  Am.  Dec.  474    Female  passengers  supra;  Liiiipus  v.  Omnibus  Co.,  1  H. 

are  entitled  to    be  protected   from  &  C.  541. 

rude,   indecent   or  brutal  behavior.  » Railroad  Co.  v.  Young,  21   O.   S. 

Keene  v.  Lizardi,  26  Am.  Dec.  478.  518. 

2  Crawford  v.  Railroad  Co.,  26  O.  S.  6Healy  v.  Railroad  Co.,  24  O.  S.  23. 
580;  Shelton  v.  Railroad  Co.,  29  O.  S.  See  State  v.  Kimber,  4  W.  L.  G.  359. 
219;  Townseud  v.  Railroad  Co.,  56 

N.  Y.  296. 


206  ASSAULT   AND   BATTEET.  [§  231^ 

taken  up  by  a  conductor,  he  must  still  provide  himself  with 
another  or  pay  his  fare ;  if  he  refuses  and  is  ejected,  his  remedy 
is  not  for  expulsion  but  for  the  wrongful  taking  up  of  the 
ticket.^  So  a  person  boarding  a  crowded  passenger  train^ 
even  though  unable  to  procure  a  seat,  must  nevertheless  give 
the  conductor  his  ticket  or  pay  his  fare;  if  he  fails  to  do  so  he 
may  be  ejected.  If  the  conductor  attempts  to  take  the  ticket 
by  force  he  is  guilty  of  assault  and  battery,  for  which  the  com- 
pany is  liable.^  Such  a  passenger  must  not  be  ejected  with  un- 
reasonable violence,  or  at  a  place  where  he  would  be  exposed 
to  serious  injury  or  danger.^  Nor  is  a  passenger  who  has  lost 
a  commutation  ticket  justified  in  refusing  to  pay  his  fare,  and 
if  ejected  cannot  maintain  an  action  of  tort  against  the  rail- 
road company  in  the  absence  of  excessive  force  on  the  part  of 
the  company's  servants.*  A  conductor  is  not  justified  in  using^ 
any  more  force  in  ejecting  a  boisterous  or  unruly  passenger 
than  any  other,  but  must  reasonably  exercise  the  right,  avoid- 
ing unnecessary  injury.^  The  force  used  by  a  conductor  in 
the  removal  of  a  passenger  must  in  all  cases  be  consistent  with 
the  safety  of  the  passenger's  life.* 

A  regulation  by  a  street  railway  company  requiring  a  pas- 
senger who  takes  into  a  car  a  package  too  large  to  be  carried 
on  his  lap  to  pay  an  additional  fare  therefor  is  a  reasonable 
one,  and  the  conductor  is  justified  in  using  the  requisite  force 
to  remove  such  a  passenger,  and  if  he  uses  no  more  than  is 
necessary  to  eject  him  the  company  cannot  be  held  liable  for 
assault;^  but  a  company  is  liable  for  an  assault  and  battery 
committed  by  a  conductor  who  forcibly  takes  property  from 
a  passenger  for  payment  of  fare ;  ^  or  for  an  assault  and  bat- 
tery committed  by  a  ticket  agent  upon  a  person  purchasing  a 

1  Shelton  v.  Railroad  Co.,  29  O.  S.  345 ;    Harrold    v.    Railroad    Co.,    47 

219.  Minn.  17. 

^  C.  C.  C.  &  I.  Ry.  T.  McLean,  1  O.  «  Sandford  v.  Railroad  Co.,  23  N.  Y. 

C.  C.  117.  343;  Klein  v.  Railroad  Co.,  39  CaL 

3  Railroad  Co.  v.  Skillman,  39  O.  S.  587. 

453;  Cory  v.  Railroad  Co.,  3  W.  L.  G.  7  Morris  v.  Atl.  Ave.  R  R  Co.,  116 

90.  N.  Y.  552. 

4  Crawford  v.  Railroad  Co.,  26  O.  &  SRamsden  v.  Railroad  Co.,  6  Am. 
580.  Rep.  200. 

6  Railroad  Co.  v.  Valleley,  32  O.  S. 


§  232.]  ASSAULT   AND   BATTERY.  207 

ticket,  caused  by  an  altercation  about  it;'  or  for  an  assault 
by  a  conductor  upon  a  passencrer  who  refuses  to  pay  fare  a 
second  time,  the  conductor  claiming  that  it  had  not  been  paid.^ 

Cases  may  arise  where  the  conduct  of  a  ])assenger  will  be 
such  that  his  right  to  recover  damages  for  an  assault  may  be 
waived  by  his  own  misconduct,  as  the  duty  is  devolved  upon 
the  party  complaining  to  so  demean  himself  toward  the  serv- 
ant as  not,  by  misbehavior,  to  provoke  a  quarrel  between 
them.^  So  it  has  been  held  that  where  a  person  who  has  pur- 
chased a  ticket  as  a  passenger  applies  to  a  servant  of  a  rail- 
way company  to  have  his  baggage  checked,  who  by  his  im- 
pudent conduct  and  abusive  language  toward  the  plaintiff 
provoked  a  quarrel  in  which  the  servant,  to  gratify  his  per- 
sonal resentment,  struck  the  plaintiff,  he  cannot  recover  dam- 
ages therefor.'' 

Sec.  232.  Petition  for  Avrongful  removal  of  passenger 
from  street-car. — 

Plaintiff  says  that  the  defendant  is  a  corporation  duly  in- 
corporated under  the  laws  of  Ohio;  that  it  is  a  common' car- 
rier of  passengers ;  that  it  has  a  street  railroad  track  on  

street,  in  the  city  of ,  between  and  streets  in 

said  city ;  that  it  has  street  railroad  cars  running  on  its  said 
track  for  the  carrying  of  passengers  therein;  that  it  has  one 

of  its  cars,  number ;  that  it  has  in  its  employ  on  this  car 

a  conductor,  and  that  all  of  these  statements  were  equally 

true  of  and  applicable  to  defendant  on  the  day  of  -, 

18 — ;  that  on  the  night  of  the day  of  ,  18 — ,  plaint- 
iff boarded  said  car  number  ,  at  the  corner  of  and 

streets,  the  car,  at  his  request,  having  stopped  to  let  him 

get  on;  that  he  thus  boarded  said  car  to  ride  therein  as  a  pas- 
senger a  few  squares;  that  he  had  in  his  hand,  and  was  ready 
to  ])ay  when  called  upon,  the  charge  for  his  transportation, 
but  that  he  was  not  called  upon  to  pay  anything;  that  after 
he  was  upon  the  car,  the  conductor  thereof  J  appointed  by  and 
in  the  employ  of  defendant,  ordered  him  to  go  to  the  front  of 
the  car  near  the  driver,  and  to  stand  on  the  platform  in  front 
of  the  car;  that  plaintiff  refused  to  obey  this  order  and  took 
a  seat  within  the  car,  claiming  at  the  time  that  he  had  a  right 
so  to  do;  that  the  said  conductor  then,  in  a  rude  manner,  or- 

1  Fick  V.  Railroad  Co.,  60  Am.  Rep.  414 ;  Flinn  v.  Railroad  Co.,  49  N.  Y. 

^'^^'  Super.  Ct.  81 ;  Harrison  v.  Fink,  42 

-  Goddard  v.  Railroad  Co.,  2  Am.  Fed.  Rep.  787. 

^«"P-  39-  i  Little  Miami  R.  R  Co.  v.  Wet- 

3  Scott  V.    Railroad   Co.,   53  Hun.  more,  19  O.  S.  110. 


20S  ASSAULT   AND    BATTERY.  [§  233. 

dered  plaintiff  to  get  out  of  the  car,  which  he  declined  to  do ; 
and  thereupon  the  said  conductor  called  to  the  driver  to  come 
and  assist  him  (the  conductor)  to  put  plaintiff  off  the  car,  but 
the  driver  did  not  come;  then  the  conductor  ordered  the  car 
to  move  on;  that,  as  the  car  passed  street,  the  con- 
ductor stopped  it  and  stated  to  plaintiff  that  he  would  go 
and  get  a  policeman  and  would  put  him  (plaintiff)  out  of  the 
car,  to  which  plaintiff  replied  that  he  would  obey  the  order  of 
an  officer;  that  the  conductor  returned  to  the  car  without  a 
policeman,  and  ordered  it  to  move  on;   that  when  the  car 

reached street  the  conductor  stopped  it  and  procured 

some  rowdies,  who,  at  the  instigation  and  by  the  procurement 
of  the  conductor,  entered  the  car  and  with  force  and  violence 
assaulted  plaintiff,  seized  him  by  the  throat,  dragged  him  from 
the  car  and  struck  him,  wounding  and  cutting  his  face.  Plaint- 
iff says  that  this  was  done  by  the  procurement  and  direction 
of  the  said  conductor,  he  being  present,  using  and  assisting 
the  said  rowdies,  and  he  being,  at  the  same  time,  in  the  employ 
of  the  defendant  as  their  conductor,  and  as  such  having  con- 
trol of  the  car;  that  plaintiff  was  thus  by  the  defendant, 
through  its  conductor,  assaulted,  beaten  and  driven  from  the 
car  as  aforesaid.  Plaintiff  further  says  that  during  all  this 
assault  upon  him,  and  during  the  time  he  was  in  tlie  car,  he  was 
in  an  orderly  and  proper  manner  conducting  himself,  being 
seated  upon  the  seat  of  the  car ;  that  the  car  was  not  full,  but 
that  there  was  abundant  room  for  many  such  passengers. 
Plaintiff  therefore  says  he  has  been  injured  and  damaged  by 

the  defendant  by  the  above  acts  to  the  amount  of dollars, 

for  which  sum  he  asks  judgment. 

Note.— From  Passenger  Railroad  Co.  v.  Young,  21  O,  S.  518.    This  peti- 
tion sustained  the  attack  of  a  demurrer. 

Sec.  233.  Petition  for  ejection  from  railroad  car  and  for 

assault. — 

That  on  the da}^  of  ,  18 — ,  the  defendant  was  a 

corporation  doing  business  within  the  state  of  Ohio,  and  was 
the  owner-  and  proprietor  of  a  certain  railroad  line  running 

from ,  in  the  county  of .  to -,  in  the  state  of , 

and  was  then  and  there,  at  the  date  aforesaid,  and  for  a  long 
time  prior  thereto  had  been  and  still  is,  a  common  carrier  for 
hire  of  passengers  and  their  baggage  over  its  line  of  railway. 

That  at  that  date,  at  ,  he  purchased  of  the  defendant 

a  passage  on  its  train  of  cars  from  — ■ —  to  ,  and  paid 

therefor  the  usual  fare  to  defendant's  agent,  and  boarded  de- 
fendant's car  at ,  about o'clock  in  the  evening  of  the 

day  of ,  18 — ,  and  rode  on  the  train,  as  he  was  en- 
titled, to  ,  till  he  reached  a  point  near  the  city  of , 

in  the  county  of ,  Ohio,  where  the  defendant's  agent  and 

conductor  of  the  train,  in  the  course  of  his  collections  of  fares 


§  234.]  ASSAULT    AND    BATTERY.  209 

on  the  train,  took  from  the  plaintiff  the  ticket  which  he  re- 
ceived from ,  the" defendant's  agent,  as  the  token  of 

his  right  to  a  passage  to ,  and  thereafter  when  the  train 

had  reached  a  point  about miles  west  of ,  the  con- 
ductor of  the  train  stopped  it,  and  in  an  uninhabited  part  of 

the  ,  about  the  hour  of  midnight,  and  refused  to  carry 

the  plaintiff  or  permit  him  to  ride  any  farther  on  the  train 

towards ,  and  without  any  just  cause  illegally  and  violently 

assaulted  the  plaintiff  and  put  him  off  the  train,  and  left  him 

to  take  his  way  as  best  he  might  to . 

Wherefore  plaintiff  was  damaged  in  the  sum  of dollars, 

for  which  he  asks  judgment. 

Note.— From  A.  &  G.  W.  Ry.  Co.  v.  Dunn,  19  O.  S.  162. 

Sec.  234.  Answer  of  railway  company  that  plaintiff  was 
ejected  for  non-payment  of  fare. — 

[CajJtion.'] 

That  at  the  time  mentioned  in  the  petition  the  defendant 
was  conductor  and  had  charge  of  a  certain  passenger  train  on 

the  railroad   of  the  Eailway  Company,  running  from 

to . 

That  one  of  the  regulations  of  said  company  was  that  no 
person  should  be  permitted  to  be  and  remain  on  such  train 
without  having  a  ticket  therefor  duly  obtained,  or  without 
paying  his  fare  on  request  [or,  and  that,  if  a  passenger  had 

not  so  purchased  a  ticket,  he  is  required  to  pay cents 

extra  fare]. 

That  at  said  time  the  plaintiff  was  on  said  train  without 
having  a  ticket  therefor,  and  then  and  there  refused  to  pur- 
chase a  ticket  or  pay  his  fare. 

That  defendant  thereupon  requested  the  plaintiff  to  leave 
said  train,  which  the  plaintiff  refused  to  do;  whereupon  de- 
fendant then  and  there  gently  laid  his  hands  upon  the  plaintiff 
and  removed  him  from  said  train,  without  unnecessary  vio- 
lence, which  is  the  same  act  complained  of  by  the  plaintiff. 

Note. —  Companies  may  require  passengers  to  purchase  tickets  before 
getting  upon  a  train,  and,  if  they  have  failed  so  to  do,  may  be  required  to 
pay  an  extra  fare,  and  may  be  ejected  upon  refusal ;  and  if  no  unnecessary 
force  be  used,  they  have  no  right  of  action.  Sage  v.  Railway  Co.,  33  N.  E. 
Rep.  771  (Ind.,  1893);  Falkner  v.  Railway  Co.,  55  Ind.  369;  57  Ind.  576;  28 
Ind.  1 ;  46  Ind.  293.  This  defense  must  be  specially  pleaded.  Pier  v.  Finch, 
29  Barb.  170.  As  to  force,  see  Sanford  v.  Railroad  Co.,  23  N.  Y.  343;  Kline 
v.  Railroad  Co.,  39  Cal.  587 ;  Law  v.  Railroad  Co.,  32  la,  534. 
14 


CHAPTER  18. 


ATTACHMENT. 


3ec.  235. 

When  attachment  will  lie. 

Sec.  254  What  may  be  attached. 

236. 

Jurisdiction. 

255. 

Delivery  of  property  to  per- 

237. 

Parties. 

son  found  in  possession  — 

238. 

Some  general  rules  of  plead- 

Redelivery bond. 

ing. 

256. 

Proceedings    against    gar- 

239. 

Against  non-resident  debt- 

nishee. 

ors. 

257. 

Service  upon  garnishee  and 

240. 

Against    absconding  debt- 

his liability. 

ors. 

258. 

Answer  of  garnishee. 

241. 

Left  county  of  residence. 

259. 

Form    of    answer  of  gar- 

242. 

Concealment  of  defendant 

nishee. 

243. 

Debtor  removing  property. 

260. 

Answer  of  garnishee  bank. 

344. 

Converting    propert}'    into 

261. 

Several  attachments   upon 

money. 

same  property. 

245. 

Concealing  property. 

262. 

Receiver  for  property  at- 

246. 

Fraudulent  assignment 

tached. 

247. 

Di'bt  fraudulently  or  crim- 

263. 

Discharge  of  attachment 

inally  incurred. 

264. 

Judgment  for  plaintiff  and 

248. 

Attachment     before     debt 

proceedings  thereunder. 

d  ue. 

265. 

Proceedings  not  terminated 

249. 

Requisites  of  afP<lavit 

by  death  of  defendant 

250. 

General  form  of  affidavit 

266. 

Error  from  attachment  pro- 

251. 

Form   of    affidavit  stating 

ceedings. 

circumstances  and  partic- 

267. 

Motion    to    sell   perishable 

ular  ground. 

property   or  because    of 

252. 

Undertaking,     when      re- 

expense of  keeping. 

quired. 

268. 

Answer  of  defendant 

253. 

Order  of  attachment  issue, 
return  and  execution. 

Sec.  235.  AVlieu  attachment  will  lie. —  The  remedy  by 
attachment  being  an  extraordinary  one,  a  wise  jealousy  should 
be  exercised  when  a  creditor  makes  use  of  it  to  interrupt  the 
ordinary  business  of  a  debtor,  to  close  his  doors  and  publish 
him  to  the  community  as  an  insolvent.  The  court  should 
scrutinize  the  conduct  and  motive  of  the  plaintiff  and  require 
him  to  make  out  a  clear  case.^     The  remedy  is  purely  a  creat- 

1  Egan  V.  Lumsden,  4  W.  L.  G.  161. 


§  235.]  ATTACHMENT.  21 1 

ure  of  statute  and  was  uoknown  at  common  law;^  nor  can 
it  be  aided  or  corrected  by  a  court  of  equity. ^  The  law  upon 
the  subject  will  therefore  be  largely  confined  to  statutes,  and 
decisions  thereunder,  of  a  particular  state,  although  there  is 
uniformity  in  the  statutes  of  the  various  states  with  regard 
to  the  grounds  upon  which  attachment  will  issue. 

The  general  rule  is  that  in  the  absence  of  statute  the  writ 
will  not  issue  in  actions  founded  on  tort,  but  is  confined  to 
actions  based  upon  contract.  The  Ohio  code  ="  provides  that 
it  may  issue  in  civil  actions  for  the  recovery  of  money.  This 
is  broad  enough  to  include  actions  for  the  recovery  of  dam- 
ages in  cases  of  tort,  and  it  has  been  so  held.'*  Upon  this 
point  the  various  codes  are  not  uniform,  some  restricting  ac- 
tions to  cases  where  the  common-law  action  of  debt  would 
lie.  Prior  to  1880,  under  the  Ohio  code,  there  was  an  excep- 
tion, at  least  as  to  cases  falling  within  the  ground  that  the 
defendant  was  a  non-resident,  such  cases  being  restricted  to 
actions  arising  upon  contract,  judgment  or  decree.*  The  rule 
has  been  modified  since  the  revision  of  1880,  it  having  been 
provided  that  an  attachment  may  be  granted  against  a  non- 

1  Humphrey  v.  Wood,  Wriglit,  566.  not  therefore  fall  within  the  statute, 

2  Bigelow  V.  Andruss.  81  111,  332.  and  that    process    could    not   issue 

3  Sec.  5521.  against    a    non-resident    defendant. 
^  Davidson   v.  Owen,  5   Minn.  69 ;  Conley  v.  Creighton,  1  W.  L.  B.  364 

Morrison   v,  Lovejoy.  6   Minn.  183:  (1876),  affirmed  in  2  AV.  L.  B.  4(1877). 

Morton  v.  Pearraan,  28  Ga.  323.  But  this  rule  would  not  apply  to  an 

'>  Sec.  5521 ;  62  O.  L.  10 ;  S.  &  S.  549 ;  action  brought  against  a  defendant 

S.  &  C.  1002.     It  would  seem,  there-  residing  within  the  state  to  which,  it 

fore,  that  a  remedji  may  be  pursued  being  held  that  a  writ  of  attachment 

upon  all  other  grounds,  whether  the  is  as  plainly  applicable  to  cases  of 

case  be  one  on  contract  or  m  tort,  this  character  as  to  cases  of  debt  for 

Some  question,  however,  was  raised  the   non-payment  of    money    or  of 

under  the  statute  as  it  then  existed  damages  for  the  breach  of  any  other 

as  to  actions  against   non-residents,  contract.     Caldwell    v.    Spillman,    7 

the    courts    generally  holding    that  W.   L.   J.  149  (Supr.    Ct,    1849).  '  It 

cases    brought    upon    that   ground  was  also  held  under  that  statute  that 

must  clearly  fall  within  the  provis-  a  writ  of  attachment  could  not  be 

if.ns  of  the  statute  and  not  partake  issued  in  a  case  against  a  garnishee 

of  the  nature  of  tort.     Pope  v.  Insur-  who    was    a    non-resident     on    the 

aQce  Co.,  24  O.  S.  481 ;  Squair  v.  Shea,  ground  of  non-residence,  even  though 

1  W.  L.  B.  99.     For  instance,  it  was  the  garnishee  appeared  and  answered 

licid  that  an  action  for  a  breach  of  to  the  merits  of  the  action.     Squair 

|«romise  against  a  non-resident  was  v.  Shea,  1  W.  L.  B.  99;  affirmed,  26 

an  action  souudmg  in  tort,  and  did  O.  S.  645. 


212  ATTACHMENT.  [§  236. 

resident  defendant  for  a  debt  or  demand  arising  by  reason  of 
death  caused  by  a  negligent  or  wrongful  act,  so  that  actions 
may  now  be  brought  in  cases  sounding  in  tort  resulting  in 
the  death  of  the  injured  party,  the  rule  remaining  the  same 
as  to  all  other  torts. ^ 

There  are  other  grounds  for  the  issuance  of  a  writ  of  at- 
tachment sufficiently  broad  to  include  cases  not  arising  upon 
contract.  The  recovery  of  money  for  damages  for  an  assault 
and  battery  may  come  under  the  ground  that  the  debt  was 
criminally  contracted.-  A  suit  by  one  partner  against  his 
copartner  for  the  recovery  of  a  balance  due  upon  unsettled 
partnership  accounts,  although  he  seeks  specific  relief  and  the 
recovery  of  money,  is  none  the  less  "  a  civil  action  for  the  re- 
covery of  money."  If  he  shows  his  claim  to  be  just,  the 
existence  of  one  of  the  grounds  for  attachment,  and  an  amount 
due  him,  his  rights  may  be  protected  by  this  proceeding  as 
any  other  creditor  or  person  having  a  demand  for  money.^ 
Judgment  other  than  for  the  recovery  of  money  or  real  prop- 
erty may  also  be  enforced  by  this  process.*  A  party  against 
whom  an  attachment  is  sought  must  himself  sustain  the  re- 
lation of  a  debtor  to  the  plaintiff  in  the  action,  and  the  debt 
must  be  a  demand  arising  upon  contract,  judgment  or  decree, 
and  not  based  upon  judgment  against  a  third  party  as  a 
garnishee.  An  attachment  cannot  be  issued  against  a  gar-- 
nishee,  based  on  a  judgment  in  a  case  in  which  he  was  gar- 
nished, until  a  judgment  has  been  rendered  against  him  for 
an  unsatisfactory  answer,  in  which  case  an  attachment  can 
issue  on  the  ground  of  non-residence.^ 

Sec.  236.  Jurisdiction. —  The  court  takes  jurisdiction  in  at- 
tachment proceedings  from  the  time  of  the  issuance  of  the  order 
of  attachment  so  as  to  give  it  control  of  all  subsequent  pro- 
ceedings ;  and  the  action  will  proceed  even  though  a  defendant 
die  or  the  charter  of  a  defendant  corporation  expire.®  A  pro- 
ceeding in  attachment  is  a  personal  action,  excepting  where 
the  defendant  is  before  the  court  only  by  virtue  of  construc- 

1  R  S.,  sec.  5521.  ■•  R.  S.,  sec.  5490 ;  Pennsylvania  v. 

2Sturdevant  v.  Tuttle,  22  O.  S.  111.     Howard,  14  O.  S.  305. 
3  Goble  V.  Howard,  12  O.  S.  165,        5  Gaughan  v.  McDonald,  1  W.  L.  R 
168.  164. 

6  R.  S.,  sec.  5560. 


§  236.]  ATTACHMENT.  213 

tive  service,  in  which  case  it  is  a  proceeding  in  rem,  binding 
mereh^  the  property  attached  and  not  QniovcxhlQ  iri  per  sonata} 
Jurisdiction  in  an  action  for  money  may  be  acquired  over  a 
non-resident  defendant  by  service  by  publication,-  It  can  be 
acquired  over  a  non-resident  defendant  in  attachment  pro- 
ceedings only  by  a  levy  upon  the  property.  This  fact  must 
be  established  before  the  action  can  proceed  to  final  judg- 
ment.^ Jurisdiction  in  such  a  case  is  complete,  therefore, 
when  the  property  has  been  attached,  and  cannot  be  ousted 
by  an  answer  of  a  garnishee  denying  knowledge  of  property 
belonging  to  the  defendant;*  and  no  time  being  prescribed  in 
which  service  by  publication  shall  be  made,  jurisdiction  can- 
not be  ousted  for  delay  therein.^ 

A  non-resident  defendant  who  demurs  to  a  petition  brings 
himself  as  fully  under  the  jurisdiction  of  the  court  as  though 
served  with  a  summons.^  An  appearance  for  the  sole  purpose 
of  objecting  by  motion  to  the  mode  or  manner  in  which  it  is 
claimed  jurisdiction  has  been -acquired,^  or  for  the  purpose  of 
moving  a  discharge  of  the  attachment,  sued  out  upon  the 
ground  of  concealment,  so  that  service  cannot  be  made,^  is 
not  an  appearance  in  the  cause,  nor  a  waiver  of  any  defect  in 
acquiring  such  jurisdiction.  An  appearance,  however,  for  the 
purpose  of  contesting  the  merits  of  a  case,  whether  by  motion 
or  formal  pleading,  will  operate  as  a  waiver.^  Nor  can  juris- 
diction be  acquired  on  the  ground  of  non-residence  of  the  de- 
fendant, where  the  petition  and  affidavit  fail  to  show  that  the 
cause  was  one  arising  upon  contract,  judgment  or  decree,'"  or 
where  death  has  been  caused  by  the  negligent  or  wrongful 
act  of  another ; "  nor  can  it  be  acquired  by  an  amendment  of 

1  Myers    v.   Smith,   29  O.   S.  120;  3  Myers  v.   Smith,   29    O.   S.   120; 
Bacher  v.  Shawhan,   41   O.  S.  271 ;  Eagan  v.  Lumsden,  3  Disn.  168. 
Eastman  v.  Wadleigh,  20  Am.  Rep.  « National  Bank   v.    Railway    Co., 
695;    Vanta  v.   Wood,   33  la.  469;  siqira. 

King  V.  Vance,  46  Ind.  346;  Pennoyer  ^  Bacher  v.  Shawhan,  41  O.  S.  271. 

V.    Neflf,    95    U.   S.    714;    Crumb  v.  « Myers  v.  Smith,  29  O.  S.  120. 

Treiber,  4  W.  L.  B.  616  (Cuyahoga,  7 Smith  v.  Hoover,   39  O.  S.    249. 

D.  C),  cannot  be  regarded  as  stating  See  ante,  sec.  119. 

the  correct  rule.  It  was  formerly  con-  SMawiecke  v.  Wolf,  3  W.   L.  B. 

sidered  under  the  Ohio  system  as  a  458  (Ham.  D.  C,  1876). 

proceeding  in  rem.     Cochran  v.  Lor-  9  Smith  v.  Hoover,  supra.  Heeanf-. 

ing.  17  O.  425.  sees.  118-19. 

2  National  Bank  v.  Railway  Co.,  21  lO  Pope  v.  Insurance  Co.,  24  O.  S.  IG 1. 
O-  S.  221.  11  R.  s..  sec.  5521. 


214  ATTACHMENT.  [§  236 

the  petition  and  affidavit  without  the  issuance  of  an  attach- 
ment thereafter/  but  such  an  attachment  cannot  enlarge  the 
scope  of  the  proceeding.- 

The  basis  of  jurisdiction  against  a  non-resident  defendant 
being  the  attachment  of  the  property,  if  that  be  without 
legal  authority  the  proceedings  thereunder  will  be  void;  and 
an  attachment  which  has  been  issued  without  the  requisite 
affidavit  is  void,  and  seizure  of  property  of  a  non-resident 
debtor  thereunder,  upon  whom  service  of  summons  cannot  be 
made,  will  not  give  the  court  jurisdiction  over  the  defendant 
or  his  property,  so  as  to  authorize  service  by  publication  or 
an  attachment  in  the  action.'  A  mere  mistake,  however,  in 
the  notice  by  publication  will  not  vitiate  an  attachment  prop- 
erly issued  and  levied,  and  such  irregularity,  in  the  absence  of 
any  objection,  will  be  immaterial* 

To  give  the  court  jurisdiction  over  personal  property  the 
officer  should  take  it  into  actual  possession,  and  if  that  is  not 
done  it  may  be  taken  in  execution  or  attachment  by  any 
other  creditor  as  if  no  previous  writ  had  been  issued.*  The 
jurisdiction  of  the  court  is  not  at  an  end  where  the  answer  of 
the  garnishee  shows  that  he  is  not  indebted  and  has  no  prop- 
erty of  the  defendant.^  It  has  been  held  that  where  there  is 
a  judgment  against  the  joint  property  of  three  persons,  and 
the  answer  of  the  garnishee  discloses  the  fact  that  there  is  an 
indebtedness  to  only  two  of  them,  the  proceedings  must  be 
dismissed  for  want  of  jurisdiction.'  Under  a  former  statute 
it  was  essential  that  there  be  an  indebtedness,  a  non-resident 
and  a  levy  upon  property  subject  to  the  proceeding  in  order 
to  give  the  court  jurisdiction;^  and  though  a  judgment  ren- 
dered without  the  publication  of  notice  was  not  void,  it  could 
be  reversed  on  error.^ 

1  Pope  V.  Insurance  Co.,  supra.  "^Feidler  v.  Blow,  5  W.  L.  J.  405. 

2  Putnam  v.  Loeb,  2  O.  C.  C.  110 ;  « Mitchell    v.    Eyster,    7    O.    257 ; 
Smead  v.  Clirisfield,  1  Handy,  573.  Parker  v.  Miller,  9  O.  108. 
Seea«<e,  sec.  127.  » Paine  v.  Mooreland,  15    O.  435; 

3  Endell  v.  Leibrock,  33  O.  S.  254 ;  45  Am.  Dec.  435.  Judge  Thurman 
Eagan  v.  Lumsden,  2  Disn.  168.  in  a  dissenting  opinion  in  Moore  v. 

4  Putnam  v.  Loeb,  2  O.  O.  C.  110.  Starks,  1  O.  S.  370,  said :"  Our  attach- 

5  Root  V.  Railway  Co.,  45  O.  S.  222.     ment  laws  require  notice  of  the  issu- 
« Penn.  R   R.  Co.  v.  Peoples,  31  O.     ing  of  the  writ  to  be  given  by  ad- 

S.  537 ;  Myers  v.  Smith,  29  O.  S.  120.     vertisement    Yet  the  want  of  such 


§  237.]  ATTACHMENT.  215 

Sec.  237.  Parties. —  A  party  against  whom  an  attachment 
is  souofht  must  himself  sustain  the  relation  of  debtor  to  the 
plaintiff  in  the  action,^  and  a  subsequent  attaching  creditor 
cannot  properly  be  made  a  party  on  the  ground  that  he  ac- 
quired an  interest  in  the  property  attached,  and  if  so  made  a 
defendant  he  may  be  dismissed  from  the  action.-  Nor  is  a 
party  who  holds  an  attachment  upon  the  lands  of  a  debtor 
which  have  been  seized  under  a  writ  of  attachment  a  proper 
party  to  the  action;^  nor  is  the  garnishee  considered  a  part}'^ 
to  the  proceedings.* 

An  indebtedness  due  to  a  copartnership  cannot  be  garnished 
in  the  hands  of  a  debtor  to  pay  a  separate  debt  due  by  one 
of  the  partners;'  nor  a  debt  of  another  firm  of  which  a  mem- 
ber of  the  first  copartnership  is  also  a  member;'^  but  the  in- 
terest of  a  partner  in  partnership  property  may  be  attached 
to  satisfy  his  individual  indebtedness,  although  the  rights  of 
the  individual  creditor  are  postponed  until  the  partnership 
creditors  are  satisfied ;  ^  and  where  one  of  the  partners  has 
absconded  and  the  other  is  disposing  of  the  partnership  ef- 
fects, the  process  may  issue  against  the  partnership  property ;  ^ 
and  so  one  partner  may  have  an  order  of  attachment,  in  an 
action  against  his  copartner  after  dissolution  of  the  partnership, 
to  recover  a  general  balance  upon  their  unsettled  accounts.** 

While  the  process  may  issue  against  individuals  who  are 
non-residents,  this  rule  cannot  be  extended  to  a  non-resident 
partnership,  as  the  statute  relating  to  suits  against  a  partner- 
ship by  its  firm  name  means  only  a  partnership  which  can  be 
served  with  process  at  its  place  of  business  within  the  state.'" 

Under  a  former  law  it  was  held  regular  to  bring  a  foreign 
attachment  against  the  administrators  of  a  deceased  debtor 

notice  does  not  render  the  judgment  *  Secor  v.   Witter,  39  O.    S.    318 ; 

void.    The  writ  and  levy  give  juris-  Crumb  v.  Treiber,  4  W.  L.  B.  616. 

diction.    The  absence  of  notice  makes  •''Myers  v.  Smith,  39  O.  S.  120. 

the  judgment  voidable."     See.  also,  6  Buchanan  v.  Mitchell,  8  W.  L.  B.  8. 

Sheldon  v.  Newton,  8  O.  S.  004.  ^  Stewart  v.  Hunter,  1  Handy,  22, 

1  Gaughan  v.  McDonald,  1  W.  L.  ^  Sellew  v.  Chrisfield,  1  Handy, 
B.  164.  86-88. 

2  Harrison   v.  King,   9  O.  S.  388 ;  » Goble  v.  Howard,  12  O.  S.  165. 
Ward  v.  Howard,  12  O.  S.  158.  i»  Crumb  v.  Treiber,  4  W.  L.  B.  616 ; 

3  Endell  v.  Leibrock.  33  O.  S.  254.  s.  c,  2  Clev.  Rep.  257.     But  see  sec. 

239,  note  8. 


216  ATTACHMENT.  [§  238. 

in  a  case  ^yhere  such  administrators  would  have  been  the 
proper  parties  could  process  have  been  served  upon  them  per- 
sonall3\^  Where  property  of  a  non-resident  debtor  has  been 
attached,  his  wife  cannot  intervene  as  a  party  to  show  that 
the  property  attached  was  hers,  as  an  interest  in  the  attach- 
ment is  not  such  an  interest  in  the  action  as  would  enable  her 
to  intervene  as  a  party  and  make  a  defense  therein.^ 

Sec.  '238.  Some  general  rules  of  pleading. —  The  court  in 
passing  on  a  motion  to  discharge  an  attachment  on  the  ground 
that  the  aflSdavit  is  insufficient  will  also  look  into  the  petition 
and  exhibits,  and  if  the  affidavit  fills  all  of  the  requirements, 
a  petition  may  be  amended  without  prejudice  to  the  attach- 
ment;^ but  after  service  it  is  not  proper  to  file  an  amended 
petition  setting  up  a  new  cause  of  action,  as  such  practice 
would  enable  a  party  to  keep  an  attachment  alive  by  adding 
new  causes  of  action  from  time  to  time,  thus  interfering  with 
substantial  rights  and  intervening  claims;*  nor  should  the 
process  be  amended  by  inserting  the  individual  names  of  a 
partnership  which  has  been  sued  as  a  partnership.^ 

The  affidavit  and  order  of  attachment  constitute  no  part 
of  a  pleading;  nor  should  the  grounds  of  attachment  be  stated 
in  the  petition.  This  is  also  applicable  to  an  action  for  a  debt 
not  due  as  in  other  actions.^  Nor  can  the  petition  and  affida- 
vit be  amended  by  showing  that  the  cause  of  action  was  one 
arising  upon  contract  without  the  issuance  of  an  attachment 
after  amendment.'  Xor  is  it  proper  pleading  to  incorporate 
the  affidavit  in  the  petition,  though  an  omission  of  the  afli- 
davit  may  be  cured  by  incorporating  into  the  petition  all  mat- 
ters which  should  have  been  in  the  affidavit.  But  where  the 
petition  does  not  show  that  the  claim  is  just,  nor  state  the 
amount  which  the  plaintiff  believes  he  ought  to  recover,  and 
is  upon  belief,  then  it  will  not  supply  the  omission.^  The  pe- 
tition in  a  case  where  an  attachment  is  had  may,  where  it 
demands  a  less  judgment,  be  amended.^ 

1  Mitchell  V.  Eyster,  7  O.  251.  6  Harrison  v.  King,  9  O.  S.  388. 

^Boyer  v.  Maginnis,  20  W.  L.  B.  "Pope  v.   Insurance  Co.,  24  O.  S. 

471.  481. 

3  Constable  v.  White,  1  Handy,  44.  ^  Endell  v.  Leibrock,  33  O.  S.  254 

4  Smead  v.  Chrisfield,  1  Handy,  573.  'Puckett  v.  Richardson  Drug  Co., 

5  Dobell  V.  Loaker,  1  Handy,  574.  20  S.  W.  Rep.  1127  (Tex.,  1892). 


§  239.]  ATTACHMENT.  217 

Sec.  239.  Against  non-resident  debtors. —  The  first  ground 
for  an  attachment  prescri"bed  by  statute  ^  and  a  common  one 
in  all  states  is  when  a  defendant  debtor,  or  one  of  several  de- 
fendants, is  a  foreign  corporation  or  a  non-resident.  It  is  pro- 
vided, however,  that  an  attachment  shall  not  be  granted  upon 
this  ground  for  any  other  claim  than  a  debt  or  demand  arising 
upon  contract,  judgment  or  decree,  or  for  causing  death  by  a 
neffligent  or  wrongful  act.  In  considerinf^:  the  decisions  under 
this  section  it  must  be  remembered  that  the  latter  clause  was 
added  by  the  revision  of  18S0.-  The  manner  of  acquiring  juris- 
diction in  proceedings  upon  this  ground  has  been  pointed  out 
in  a  preceding  section.^  Absence  from  one's  home  for  a  year 
when  the  party  left  with  the  intention  to  return,  and  that  in- 
tention is  not  in  the  meantime  destroyed  by  some  act  signify- 
ing a  purpose  to  change  his  domicile,  does  not  defeat  his  right 
to  claim  his  former  residence  as  if  it  had  never  been  interrupted 
by  his  absence  and  will  not  furnish  ground  for  attachment;* 
and  a  party  who  has  business  in  one  state  and  lives  in  another 
city  with  his  family  which  is  in  another  state  will  be  consid- 
ered a  non-resident  of  the  state  in  which  he  transacts  business, 
and  his  property  subject  to  attachment  under  this  ground;* 
but  an  order  of  attachment  cannot  issue  against  a  non-resi- 
dent garnishee  under  this  ground  even  though  the  garnishee 
appear  and  answer  to  the  merits  of  the  proceedings.®  An  at- 
tachment may  be  had,  however,  by  one  pai:tner  against  his 
non-resident  copartner  after  dissolution  to  recover  a  balance 
due  upon  their  unsettled  partnership  accounts;''  or  the  writ 
will  also  issue  against  a  non-resident  partnership  all  of  whose 
members  reside  outside  of  the  state,  but  which  is  formed  for 
the  purpose  of  doing  business  within  the  state.  Service  may 
be  made  in  such  case  by  leaving  a  copy  at  the  usual  place  of 
business  within  the  state.^ 

A  corporation  is  a  twofold  organization,  and,  so  far  as  its 

^  Sec.  5521.  Mart.   413;  Drake   on    Attachment, 

^  Ante,  sec.  235.  sec.  80. 

3  Ante,  sec.  236.  s  Barry  v.  Bockover,  6  Abb.  Pr.  374. 

*Eagan  v.  Lumsden,  2  Disn.  175;  ^Squair  v.  Shea,  26  O.  S.  645. 

Merchants'  Bank  v.  Insurance  Co.,  1  "  Goble  v.  Howard,  12  O.  S.  165. 

Disn.  469;  Smith  v.  Dalton.   1  C.  S.  SByers  v.  Schhipe,  51  O.  S.  — . 
C.   R.    150;    Watson    v.   Pierpont,  7 


^18  AITACHMENT.  [§  239. 

relations  to  the  state  are  concerned,  is  both  foreign  and  domes- 
tic.^ So  a  railroad  company  incorporated  under  the  laws  of 
one  state  operating  its  lines  in  another  is  liable  to  service  of 
garnishment  in  the  latter  as  are  domestic  corporations;*  and 
where  rolling-stock  of  a  railroad  company  is  temporarily  in 
a  state  other  than  its  domicile  and  is  there  attached,  a  re- 
ceiver appointed  by  a  court  in  its  domicile  may,  by  virtue  of 
the  comity  existing  between  the  states,  bring  an  action  in  the 
latter  state  to  recover  the  possession  when  it  will  not  conflict 
with  the  rights  of  the  citizens  of  the  latter  state  nor  violate 
its  public  policy.^ 

A  plaintiff  may,  as  soon  as  an  action  has  been  commenced  and 
an  order  of  attachment  obtained  against  a  foreign  corporation, 
proceed  to  make  service  by  publication,  and  cannot  be  post- 
poned in  obtaining  a  judgment,  in  a  case  where  the  attach- 
ment has  been  only  served  by  notices  to  garnishees  until  by 
further  answer  it  shall  appear  that  they,  or  some  of  them,  are 
indebted  to  the  defendant.*  A  foreign  insurance  company  may 
be  made  a  garnishee  by  serving  copies  of  the  orders  of  at- 
tachment and  notice  upon  a  managing  agent  of  the  company."' 

An  attachment  may  be  levied  on  property  of  a  non-resident 
defendant  situated  in  a  county  other  than  the  one  where  the 
attachment  is  sued  out.  If  there  is  also  property  in  the  county 
where  the  action  is  brought,  a  valid  lien  will  be  obtained  on 
the  property  in  both  counties.^  While  a  citizen  must  be  sued 
in  the  state  of  his  residence  or  where  he  can  be  found,  as  to  a 
non-resident  one  county  of  the  state  is  the  same  as  another, 
and  it  is  purely  a  matter  of  domestic  regulation  as  to  when 
and  upon  what  process  property  found  within  a  state  shall  be 
applied  to  claims  of  a  creditor  of  a  non-resident  debtor.  An 
attachment  may  be  had  against  a  non-resident  stockholder  in 
a  domestic  corporation;^  or  by  one  partner  against  his  non- 
resident partner;^  or  by  a  surety  against  a  non-resident  prin- 

1  State  V.  Railway  Co.,  18  Md.  193 ;  *  Vallette  v.  Bank,  2  Handy,  1. 
Railroad  Co.  v.  Gallahue,  12  Gratt.  »  Rock  v.  Raney,  15  W.  L.  B.  333. 
655 ;  Sprague  v.  Railway  Co.,  5  R  I.  « Piatt  &  W.  Refining  Co.  v.  Smith, 
233.  21  W.  L.  B.  122. 

2  Penn.  R.  R.  Co.  v.  Peoples,  31  O.  S.  ^  National  Bank  v.  Railway  Co.,  21 
537.  O.  S.  221. 

3  Merchants'  Bank  v.  McLeod,7  W.  SGoble  v.  Howard,  12  O.  S.  165. 
L.  B.  307 :  38  O.  S.  174, 


§  24rO.]  ATTACHMENT.  219 

cipal  debtor ; '  although  such  surety  cannot  in  his  own  be- 
half, upon  the  ground  that  fraudulent  representations  have 
been  made  to  him  by  his  principal,  sustain  such  an  action 
against  the  latter  on  the  ground  of  non-residence,  to  enforce 
payment  of  claims  either  due  or  not  due  in  the  hands  of  a 
third  party .^  A  garnishee,  however,  in  an  action  against  a 
foreign  firm  who  has  admitted  possession  of  money  belong- 
ing to  such  firm,  and  judgment  has  been  rendered  against  him, 
cannot  in  a  suit  for  such  money  defend  against  its  payment 
upon  the  ground  that  a  foreign  firm  cannot  be  sued  in  its  firm 
name.'  And  an  action  for  the  recovery  of  commissions  by  a 
real-estate  agent  under  a  contract  that  he  should  have  all 
over  and  above  a  certain  sum,  the  owner  refusing  to  accept 
an  offer  in  accordance  therewith,  is  a  demand  arising  upon 
contract  for  which  an  attachment  may  be  had  on  the  ground 
of  non-residence.* 

Sec.  240.  Against  absconding  debtors. —  Property  of  a  per- 
son who  has  absconded  with  the  intent  to  defraud  his  credit- 
ors may  be  attached.^  "To  abscond,  in  a  legal  sense,  is  to 
hide,  conceal  or  absent  one's  self  clandestinely,  with  the  intent 
to  avoid  legal  process."  •*  An  intent  without  actual  abscond- 
ing will  not  of  course  be  sufiicient.'  And  so  with  a  debtor  who 
has  no  intention  of  absconding,  but  who,  after  he  is  once  out 
of  the  jurisdiction,  remains  away  with  an  intent  to  defraud 
his  creditors.^  The  fact  that  one  member  of  a  firm  has  ab- 
sconded will  constitute  good  ground  of  attachment  against  the 
partnership  property.  So  where  one  partner  absconds  and 
the  other  disposes  of  a  portion  of  their  property,  it  will  be 
presumed  that  they  intended  to  so  delay  and  hinder  their  joint 

JBrannin  v.  Smith,  2  Disn.  436.  of  several  contractors  who  was  a  rea- 

2  Brannin  v.  Smith,  supra.  ident  of  the  state  and  others  were  non- 

3  Critchell  v.  Cook,  2  W.  L.  B.  97.  residents.     Taylor  v.  McDonald,  4  O. 
♦Under  a  former  statute  it  was  150. 

held  that  a  foreign  attachment  could  ^R.  S.,  sec.  5021. 

not  be  sustained  against  one  of  sev-  6  Bennett  v.  Avant,  2  Sneed,  152 ; 

eral  joint   and  several    contractors  Field  v,  Andreon,  7  Md.  209 ;  Stouffer 

(Godwin  v.  Hurford,  4  O.  133  —  Stat-  v.  Niple,  40  Md.  477. 

ute  of  1810),  and  under  a  later  one  ^  Kingsland  v.    Worsham,  15   Mo. 

that  an   attachment    could    not  be  657. 

sued  out  and  maintained  against  one  8  Hafern  v.  Davis,  10  Wis.  501. 


220  ATTACHMENT.  [§§  241-243. 

creditors  as  to  furnish  a  sufficient  ground  for  attachment.^  It 
is  held,  however,  in  New  York  that  where  one  of  two  part- 
ners has  been  guilty  of  fraudulent  acts  on  account  of  which  he 
absconded,  and  the  other  one  remains  in  the  state  carrying  on 
the  partnership  business,  and  has  not  been  guilty  of  any  actual 
misconduct,  an  attachment  can  be  had  only  against  the  prop- 
erty of  the  absconding  partner.'-  To  constitute  an  absconding 
debtor  it  is  not  essential  that  he  go  out  of  the  state,  as  a  per- 
son who  shuts  himself  up  or  hides  away  from  his  creditors 
may  be  so  considered.^  An  affidavit  \vhich  sets  forth  the  nature 
of  a  claim  upon  which  the  action  is  founded,  and  alleges 
"That  the  said has  absconded  with  the  intent  to  de- 
fraud his  creditors ;  and  further,  that  the  said is 

about  to  dispose  of  his  property  with  the  intent  to  defraud  his 
creditors,"  is  sufficient.* 

Sec.  241.  Left  the  county  of  residence. —  Where  a  defend- 
ant has  left  the  county  of  his  residence  to  avoid  service  of 
summons  is  the  third  ground  of  attachment.^ 

Sec.  242.  Concejilment  of  defendant. —  The  fourth  ground 
for  an  attachment  is  where  a  defendant  conceals  himself  so 
that  a  summons  cannot  be  served  upon  him;*  and  when  the 
process  is  sued  out  upon  this  ground,  it  is  not  necessary  that 
a  summons  be  issued  and  returned  not  found  before  attach- 
ment can  be  had.''  False  information  given  by  a  debtor  as  to 
his  whereabouts  amounts  to  concealment;^  and  so  with  con- 
cealment for  even  a  short  period  of  time  with  the  intention 
to  avoid  and  defraud  creditors  so  as  to  make  some  disposition 
of  his  property.^  It  is  held,  also,  that  an  attachment  will 
issue  against  a  debtor  who  is  notoriously  residing  abroad 
whether  permanently  or  temporarily.^** 

Sec.  243.  Debtor  removing  property.—  Where  a  defendant 
is  about  to  remove  his  property  or  a  part  thereof  out  of  the 
jurisdiction  of  the  court  with  the  intent  to  defraud  his  credit- 

1  Sellew  V.  Chrisfield,  1  Handy,  87.  7  Mawicke  v.  Wolf,  2  W.  L.  B.  86 

2  Bogart  V.  Dart,  25  Hun,  395.  (Ham.  D.  C,  1877). 

3  Ives  V,  Curtis,  2  Root,  138.  »  North  v.  McDonald.  1  Disn.  57. 
4Gans  V.  Thompson,  11  O.  S.  579.  9  Young  v.  Nelson,  25  111.  565.    See 
5R.  S.,  sec.  5521.  Gerard  v.  Tompkins,  12  Barb.  273. 

6  R.  S.,  sec.  5521.  l"  In  re  Thompson,  1  Wend.  43. 


§§  244,  245.]  A'n'ACUMENT.  221 

ors,  an  attachment  will  issue.^  It  is  essential  that  it  be  made 
to  appear  that  he  is  removing  his  property  with  fraudulent 
intent,  as  the  statute  requires  it.^  If,  however,  he  has  left 
sufficient  property  within  the  jurisdiction  to  satisfy  his  debts, 
there  can  be  no  ground,  but  the  property  removed  must  be 
of  such  a  quality  as  to  materially  interfere  with  his  ability  to 
meet  his  debts  in  the  domestic  court.^  Under  a  similar  stat- 
ute, it  has  been  held  that  a  merchant  not  having  sufficient 
property  to  pay  his  debts,  who  invests  a  material  portion  of 
his  assets  in  goods  which  he  ships  out  of  the  state,  is  liable  to 
attachment,  and  that  it  is  not  necessary  that  the  plaintiff 
should  show  that  such  removal  was  fraudulently  made.  That 
the  fact  of  the  shipment  of  goods  without  the  jurisdiction  of 
the  state  was  usual  and  customary  for  the  defendant,  who 
was  engaged  in  business,  will  not  constitute  a  defense.* 

Sec.  241.  Converting  property  into  money.— The  sixth 
ground  of  attachment  is  where  the  defendant  is  about  to  con- 
vert his  property  or  a  part  thereof  into  money  for  the  pur- 
pose of  placing  it  beyond  the  reach  of  his  creditors.^  An 
affidavit  charging  defendant  with  having  disposed  of  part  of 
his  property,  and  about  to  dispose  of  the  remainder  with 
intent  to  delay  and  defraud  his  creditors  is  sufficient  under 
this  provision,^  as  the  assignment  of  any  portion  of  his  prop- 
erty will  authorize  an  attachment  to  issue."  The  affidavit 
should  show  either  that  the  property  has  been  disposed  of  or 
that  the  debtor  is  about  to  dispose  of  it,  or  that  he  has  dis- 
posed of  part  or  is  about  to  dispose  of  part.^ 

Sec.  245.  Concealing  property.—  If  the  defendant  has  prop- 
erty or  rights  of  action  which  he  conceals  an  attachment  will 
issue.^  This  may  be  a  misrepresentation  of  facts  as  to  prop- 
■erty  as  well  as  concealment.^" 

iR  S.,  sec.  5021.  ^Auerbach  v.  Hitchcock,  28  Minn. 

•^  Hunter  v.  Soward,  15  Neb.  215.  73. 

3  Friedlander  v.  Pollock,  5  Cold.  '  Johnson  v,  Laughlin,  7  Kan.  359 ; 
490 ;  White  v.  Wilson,  10  111.  21.  Weiller  v.  Schreiber,  6o  How,  Pr.  491 ; 

4  Mack  V.   McDaniel,   2   McCrary,  Taylor  v.  Myers,  34  Mo.  81. 

198.  8  Johnson  v.  Buckel,  20  N.  Y.  566. 

5  R  S.,  sec.  5521 ;  Flannigau  v.  Don-        9  R  S.,  sec.  5521. 

Aldson,  85  Ind.  517.  lo  Powell  v,  Matthews,  10  Mo.  49; 

Anderson  v.  O'Reilly,  54  Barb.  630. 


222  ATTACHMENT.  [§  246 

Sec.  246.  Fraudulent  assignment. —  While  an  attachment 
may  be  had  under  the  statute  where  the  debtor  has  assigned, 
removed,  disposed  of,  or  is  about  to  dispose  of,  his  property 
or  a  part  thereof,  with  intent  to  defraud  his  creditors,^  yet,  as 
it  is  an  extraordinar}^  remedy,  a  creditor  must  bring  his  case 
within  the  letter  of  the  law  in  order  to  avail  himself  of  it. 
When  the  statute  provides  that  there  must  be  an  attempt  to 
defraud  creditors,  to  furnish  a  ground  for  an  attachment,  re- 
sort cannot  be  had  to  the  doctrines  of  equity  in  determining 
whether  or  not  there  is  fraud  in  a  given  case,  as  a  court  of 
equity  will  often  hold  acts  to  be  fraudulent  when  there  is  no 
intent,  and  such  a  rule  is  not  applicable  to  cases  of  attach- 
ment based  on  this  ground.  Constructive  fraud  is  not  suffi- 
cient ground  to  support  an  attachment,  and  an  actual  and 
intentional  fraud  must  be  shown,'-  and  the  affidavit  must  state 
facts  sufficient  to  show  such  intent.  Facts  reasonably  au- 
thorizing belief  of  such  an  intent  are  insufficient;'  and  the 
burden  of  establishing  such  fraudulent  intent,  where  it  is 
controverted,  rests  upon  the  plaintiff,  and  it  cannot  be  done 
by  saying  that  the  debtor  was  insolvent,  or  that  he  was 
merely  trying  to  dispose  of  property,  without  showing  that 
he  had  another  object.^ 

A  person  engaged  in  business  who,  upon  finding  himself 
embarrassed  and  insolvent,  turns  his  business  into  a  corpora- 
tion, taking  shares  of  stock  therein,  under  the  honest  belief 
that  he  was  thereby  better  providing  for  his  creditors,  and 
with  that  intention,  cannot  be  considered  to  have  such  a 
fraudulent  intent  as  to  afford  ground  of  attachment;^  nor 
can  an  attachment  be  issued  against  a  debtor  upon  the  ground 

iSec.  55'21.  would  be  essential  to  maintain  an  ac- 

2  Union  Rolling  Mill  Co.  v.   Pack-  tion  based  on  fraud.     Bank  v.  Mee- 

ard,  1  O.  C.  C.   76 ;  Chamberlain  v.  ban,  20  N.  Y.  S.  766. 

Strong.   3  W.    L.   G.   281 ;  Shove  v.  '^  Ely  v.  Hanks,  1  W.  L.  M.  107. 

Farwell,   9    Bradw.   256;    Eaton    v.  *  Xowle  v.  Lamphere,  18  111.  App. 

Wells.  18  Minn.  410 ;  Bowen  v.  Gil-  399. 

kelson,  7  la.  503;  Spencer  v.  Deagle,  *  Beitman  v.  McKeuzie.  11  W.  L. 
34  Mo.  455 ;  Hines  v.  Fagebank,  9  B.  272  (C.  S.  C.  R,  1884) ;  Union  Roll- 
Minn.  68 ;  Pittman  v.  Searcey,  8  la.  ing  Mill  Co.  r.  Packard,  13  W.  L.  B. 
352:  Johnson  v.  Field,  62  Ind.  377.  591;  Union  Rolling  Mill  v.  Packard, 
There  must  be  as  much  evidence  as  1  O.  C.  C.  76. 


§  247.]  ATTAOHMENT.  223- 

that  he  has  conveyed  property  to  hinder  creditors,  where  he 
has  made  a  deed  therefor  upon  an  adequate  consideration 
which  has  been  recorded,  expecting  that  his  grantee  will  ac- 
cept the  same  and  pay  the  amount  of  such  consideration,  but 
which  he  fails  to  do,  as  without  the  grantee's  acceptance 
thereof,  there  is  no  conveyance;  such  a  transaction  might 
support  an  attachment  upon  the  ground  that  the  debtor  was 
attempting  to  convey  his  property.^  But  it  has  been  held 
that  a  conveyance  made  without  consideration  by  a  debtor 
whose  solvency  is  doubtful,  to  his  wife,  without  any  actual 
intention  to  defraud  his  creditors,  will  not  sustain  an  attach- 
ment, even  though  it  might  justify  a  bill  to  set  the  same 
aside.^  Fraud  may,  however,  sometimes  be  presumed  where 
a  party  largely  in  debt  transfers  property  without  any  con- 
sideration, or  gives  a  mortgage  without  consideration.^ 

Sec.  217.  Debt  fraudulently  or  criminally  incurred. — 
Some  difficulty  has  been  experienced  in  construing  the  last 
ground,  viz. :  that  the  defendant  has  fraudulently  or  criminally 
contracted  the  debt  or  incurred  the  obligation  for  which  suit  is- 
about  to  be  brought.*  The  construction  placed  upon  the  pro- 
vision when  it  contained  only  the  ground  "  fraudulently  con- 
tracted the  debt  or  incurred  the  obligation"  was  that  the  debt 
or  obligation  must  be  one  arising  upon  contract,  and  that  recov- 
ery could  not  be  had  for  unliquidated  damages  not  thus  aris- 
ing.5  The  decisions  under  the  later  statute  ^  have  settled  the 
question,  holding  that  an  attachment  may  be  issued  in  an  ac- 
tion to  recover  damages  for  fraud  in  obtaining  goods  under 
a  contract  induced  by  false  representation.  The  fact  that  there 
has  been  a  levy  and  sale  thereunder  will  not  constitute  a 
waiver  of  the  fraud  and  performance  of  the  contract.'^  And 
where  brokers  have  sold  certain  stock  for  another,  received 
the  money  and  converted  the  same  to  their  own  use,  they 
have  fraudulently  incurred  an  obligation.^     Where  a  person 

1  Pierce  v.  White,  22  W.  L.  B.  98.  Co.,  1  Disn.  469  (ISoTj.    See  Drake  on 

^  McFarlan  v.  Mills,  4  W.  L.  B.  1064  Attachment,  sec.  10. 

(Hauj.  D.  C).  b!S,    &   c.   550,   amended   Feb.  16, 

3  Curtice  v.  Hoadly,  29  Kan.  566,  1865. 

Taylor  v.  Kuhuke,  26  Kan.  132.  t  ]jean  v.  Yates,  22  O.  S.  388. 

*  Sec.  5531.  8  Este  v.  Wilkshire,  44  O.  S.  6.36.  The 

^Merchants'    Bank    v.    Insurance  Hamilton  county,  Ohio,  district  court 


224  ATTACHMENT.  [§  247. 

has  represented  that  he  owes  a  certain  sum  of  money,  whereas 
he  is  indebted  in  a  much  larger  sum,  such  representations 
cannot  furnish  a  ground  for  an  attachment  for  fraudulently 
incurring  a  debt,  where  it  does  not  appear  that  the  debtor 
knew  the  statement  to  be  false  or  knew  or  had  reason  to 
know  that  the  creditor  would  rely  on  it.^  Where  an  employee 
of  a  debtor,  who  has  information  that  the  latter  is  about  to 
make  an  assignment,  procures  certain  property  of  the  debtor 
to  be  taken  into  another  state,  and  there  attaches  it  upon 
the  ground  of  non-residence  of  the  defendant,  such  an  attach- 
ment will  be  deemed  fraudulently  procured,  and  set  aside 
upon  motion.'-  Under  the  amended  statute,  with  the  words 
"  or  criminally  '*  inserted,*  in  cases  in  which  the  element  of 
criminality  is  presented,  the  term  "  obligation,''  as  used  in  the 
statute,  is  equivalent  to  liability ;  and  hence  an  attachment 
will  lie  in  a  civil  action  to  recover  unliquidated  damages  for 
assault  and  battery,  upon  the  ground  that  the  debt  or  obliga- 
tion has  been  fraudulently  or  criminally  contracted.*  An  affi- 
davit setting  forth  that  the  action  was  brouo^ht  for  the  recov- 
ery  of  damages  for  unlawfully  assaulting,  beating,  bruising 
and  shooting  plaintiff  sufficiently  shows  that  the  defendant 
"  oriminally  incurred  the  obligation,"  within  the  meaning  of 

held  that  where  a  commission  mer-  without  assuming  to  determine  what 

chant  sells  goods  intrusted  to  his  care,  rules  held  in   cases  of  this  kind  in 

and  appropriates  the  proceeds  arising  which  the  element  of  criminality  is 

therefrom,  and  refuses   to   account  wanting,  held   that  where   this  ele- 

for  the  same,   an   attachment  can-  nient  is  present   the  term  "  obliga- 

not  issue  in  an  action  for  the  recov-  tion "  was  the  same  as  "  liability," 

ery  of  the  amount  upon  the  ground  and  that  there  were  many  cases  in 

that  the  debt  was   fraudulently  in-  which   criminality  may  be   present 

curred.     Devinney  v.  Smitli,  1  W.  L.  %vithout  any  fraud,   as  in   larceny, 

B.  431.  arson,  libel,  injury  to  the  person,  and 

1  Bullock  V.  Mitchell  16  W.  L.  B.  the  like,  and  that  unless  the  act  as 
354  (C.  S.  C,  1886).  amended  was  held  applicable  to  such 

2  Kizer  v.  George.  19  W.  L.  B.  257.     cases  it  would  otherwise  be  mean- 
3S.   &   C.   550,    amended   Feb.  16,     ingless.     See  Drake  on  Attachment, 

1865.  sec.  10 ;  Kirk  v.  Whitaker,  23  O.  S. 

*Sturdevant  V.  Tuttle,  22  O.  S.  111.  115.     The  word    "criminally"   was 

The  question  was  raised  in  this  case  inserted  after    the    word    "fraudu- 

that  the  terms  "  debt "  and  '•  obliga-  lently,"     Creasser  v.  Young,  31  O.  S. 

tion  "  were  restricted  to  cases  orig-  57. 
inating  in  contract,  and  the  court. 


§  248,]  ATTACHMENT. 


^25 


the  statute.^  The  terms  "fraudulently"  and  "criminally" 
are  not  synonymous,  but  separate  and  distinct  grounds  of  at- 
tachment-^*  A  construction  has  been  placed  upon  this  provis- 
ion that  one  who  purchases  goods  without  any  intention  to 
pay  fraudulenth^  contracts  the  debt.' 

Sec.  248.  Attachment  before  debt  due.— A  creditor  may 
bring  an  action  upon  his  claim  before  it  is  due  and  have  an 
attachment  against  the  property  of  his  debtor  when  the  latter 
has  either  sold,  conveyed  or  otherwise  disposed  of  his  prop- 
erty with  the  intent  to  cheat  or  defraud  his  creditors,  or  to 
hinder  or  delay  them  in  the  collection  of  their  debts ;  or  that 
he  is  about  to  make  a  sale,  conveyance  or  disposition  of  his 
property  with  such  fraudulent  intent ;  or  that  he  is  about  to 
remove  his  property  or  a  material  portion  with  the  intent  to 
cheat  or  defraud,  hinder  or  delay  his  creditors."  Before  the 
action  is  brought  or  the  attachment  granted  the  creditor 
must  make  an  affidavit  showing  the  nature  and  amount  of  his 
claim,  that  it  is  just,  when  it  will  become  due,  and  show  the 
existence  of  any  of  the  grounds  just  enumerated.*  The  rules 
applicable  to  the  affidavit  to  be  made  in  this  case  are  the  same 
as  where  the  debt  is  past  due.«  The  court  in  granting  the 
order  of  attachment  must  specify  the  amount  for  which  it  is 
allowed,'  and  it  shall  not  be  issued  until  an  undertaking  has 
been  given  by  the  plaintiff  as  required  in  cases  where  the 
debt  is  past  due.^  Judgment,  however,  cannot  be  rendered 
upon  a  claim  before  it  becomes  due.  but  the  proceedings  in  an 
attachment  may  be  conducted  without  delay ,^  and  are  the 
same  as  in  cases  of  attachment  where  the  debt  is  past  due. 
The  statutes  relating  to  attachment  before  debt  due  embrace 
claims  against  indorsers  of  bills  of  exchange  and  promissory 
notes  which  may  be  held  by  a  holder  of  such  notes.  The 
contract  of  an  indorser  of  a  bill  or  note  extends  to  the  ful.' 
amount  for  which  it  is  drawn,  and  if  the  conditions  are  broken 

» Creasser  v.  Young,  31  O.  S.  57.  3  Blackwell  v.  Fry,  49  Mo.  App.  G38. 

■^  Brownell  v.  Heating  Co.,  13  W.  L.  *  Sec.  5564. 

B.  35 ;  Sturdevant  v.  Tuttle,  22  O.  S.  8  Sec.  5565. 

114 ;  Kirk  v.  Whittaker,  22  O.  S.  11 5 ;  «  See  sec.  249,  post. 

Creasser  v.  Young,  31  O.  S.  57.     See  ■?  Sec.  5567. 

80C.  249  as  to  requirements  of  affida-  ^  Sees.  5523,  5568, 

vit  upon  this  ground.  '  Sec.  5569. 
15 


226 


ATTACHMENT. 


[§249. 


the  claim  is  then  due  as  to  all  past;^  and  so  an  obligation  to 
deliver  goods  on  and  after  a  certain  day  in  payment  for  cer- 
tain other  goods  constitutes  a  claim  for  which  an  action  may 
be  brouo^ht  and  an  order  of  attachment  obtained  before  the 
claim  becomes  due.' 

Under  these  provisions,  in  order  to  justify  an  attachment^ 
fraudulent  intent  to  injure  the  creditor  must  actually  exist; 
it  is  not  sufficient  that  the  actual  or  even  necessary  conse- 
quences of  the  sale  are  to  hinder  or  delay  creditors;'  and 
where  proceedings  have  been  discharged  under  this  section,  it 
is  a  matter  of  discretion  whether  the  action  shall  be  dismissed 
or  allowed  to  proceed  after  the  debt  becomes  due.* 

Sec.  249.  Requisites  of  affidavit. —  The  affidavit  is  of  the 
greatest  importance  in  the  proceeding,  as  all  subsequent 
steps  may  hinge  on  its  validity ;  and  a  writ  without  the  requi- 
site affidavit  may  be  void.^  A  slight  mistake,  however,  in 
stating  the  amount  of  the  claim  which  may  be  clearly  appar- 
ent will  not  be  fatal.''  The  affidavit  may  be  made  by  the 
plaintiff,  his  agent  or  attorney,'  and  it  is  not  necessary  that 
an  agent  or  attorney  so  describe  himself,  as  that  may  be  shown 
by  the  testimony;^  nor  is  it  essential  that  it  should  show  why 
it  was  not  made  by  the  plaintiff  himself,  or  that  the  facts 
stated  therein  were  within  the  personal  knowledge  of  the 
affiant.^  It  has  been  held,  however,  that  an  agent  must  state 
affirmatively  his  personal  knowledge  of  the  truth  of  the  mat- 
ter.io 

There  are  certain  requirements  of  the  statute  as  to  what 
the  affidavit  shall  contain  which  mav  be  omitted  without  af- 


iSmead  v.  Chrisfield,  1  Handy, 
442. 

2  Ward  V.  Howard,  12  O.  S.  158. 

3  Hydenheimer  v.  Osborne,  1  Disn. 
351. 

*  Ramsey  v.  Orevraker.  1  Disn.  569. 

6  Endell  v.  Leibrock,  33  O.  S.  254 ; 
"Waples  on  Attachments,  p.  77 ;  Naples 
V.  Tunis.  53  Am.  Dec.  779 ;  Miller  v. 
Brinkerhofifer,  47  Am.  Dec.  242  (N. 
Y.) ;  Murphy  v.  Montandom,  2  Idaho, 
1048 ;  29  Pac.  Rep.  851. 

''Rainwater,  etc.  Co.  v.  O'Neil,  82 
Tex.  337. 


"R.  S.,  sees.  5522-5530;  Billwiller 
T.  Marks,  16  N.  Y.  Supp.  541 ;  Shel- 
don V.  Kibett,  100  N.  C.  408 ;  Givens 
V.  Ganns,  18  N.  Y.  Supp.  608. 

8  Winchester  v.  Pierson,  3  W.  L.  J. 
131 ;  Sutliff  V.  Bank,  1  W.  L.  M.  214. 

9  White  V.  Stanley,  29  O.  S.  423. 

i»  Phelps  V.  Wetherby,  4  W,  L.  G. 
404 ;  Jewett  v.  Howe,  8  Watts,  147. 
The  affidavit  may  be  amended  to 
show  that  it  is  made  by  an  agent  or 
attorney.  Tracy  v.  Gunn,  29  Kan. 
508. 


§  249.]  ATTACHMENT.  227 

fecting  its  validity  as  to  creditors  and  purchasers;  and  these 
irregularities  and  omissions  are  considered  waived  unless  ad- 
vantage is  taken  of  them  by  the  debtor,  but  are  not  available 
to  other  creditors.^  Strictly  speaking,  the  affidavit  required 
in  attachment  proceedings  constitutes  no  part  of  the  plead- 
ings in  the  case,  and  it  is  not  considered  good  practice  to  in- 
corporate the  same  in  the  petition;  but  in  some  cases  it  is 
held  that  such  a  rule  may  be  adopted  when  the  statement  in 
the  petition  is  full  and  complete,  and  all  the  requisites  of  an 
independent  affidavit,  including  the  absolute  verification,  are 
incorporated  therein ;  ^  and  this  is  applicable  alike  to  an  ac- 
tion or  debt  not  due.^  It  is  held,  however,  that  the  affidavit 
may  be  enlarged  by  incorporating  the  allegations  of  the  peti- 
tion therein  by  reference ;  as,  for  example,  ''  that  the  nature 
of  the  claim,  as  set  forth  in  the  petition,  reference  to  which 
is  hereby  made,  and  the  averment  thereof  adopted  and  made 
a  part  of  this  affidavit,''  or,  "that  the  defendant  fraudulently 
incurred  the  obligation  for  which  the  suit  is  about  to  be 
brought  under  the  circumstances  and  in  the  manner  set  forth 
in  the  petition;''*  that  when  the  petition  states  all  essential 
facts  and  is  sworn  to  positively,  it  is  sufficient.  But  unless 
it  is  specially  referred  to,  and  sworn  to  positively  for  the 
purpose  of  attachment,  it  will  not  answer.* 

The  practice  adopted  in  injunction  proceedings  of  stating  the 
facts  fully  in  the  petition  and  then  to  swear  positively  to  their 
truth  in  the  affidavit  thereto,  with  the  additional  statement 
that  the  affidavit  is  also  made  for  the  purpose  of  securing  an 
injunction,  has  never  been  followed  in  attachment  proceed- 
ings, although  it  has  been  intimated  that  there  is  as  good  rea- 
son for  adopting  such  a  course  with  respect  to  the  latter  as  to 
the  former.*' 

1  Root  V.   Railway  Co.,   45    O.    S.  not  be  considered  to  aid   it  in  any 

222-8.  way.     Squair  v.  Sbea,  1  W.  L.  B.  99; 

2Endell  v.  Leibrock,  .33  O.  S.  254.  affirmed,  26  O.  S.  645. 

3  Harrison  v.  King,  8  O.  S.  388.     It  « stjfei  t.  Bank,  16  W.  L.  B.  398 

is  said  by  Judge  Yaple  that  it  is  the  (C.  S.  C.  R.,  1866,  Force,  J.);  Miller  v. 

settled  rule  in    Ohio  that  the  suffi-  Chandler,  29  La.  Ann.  88;  Scott  v. 

ciency  or  insufficiency  of  the  affida-  Donegey.  17  B.  Mon.  321. 

Tit  or  attachment  must  be  determined  &  Harrison  v.  King,  9  O.  S.  394-5. 

by  the  facts  stated  in  it  alone,  and  ^  Ketchem  v.  Phillips,  1  Clev.  Rep. 

that  the  allegations  or  pleadings  can-  9 ;  Hughes  v.  Insurance  Co.,  1  Clev. 


228  ATTACHMENT.  [§  249. 

While  the  better  practice  is  to  set  forth  the  facts  and  cir- 
cumstances of  the  case  in  the  affidavit,  not  merely  stating  the 
words  of  the  statute,  yet  this  rule  has  not  always  been  fol- 
lowed. The  court  may,  if  it  deems  proper,  act  upon  an  affi- 
davit which  states  the  grounds  for  an  attachment  substantially 
in  the  language  of  the  statute,  upon  the  theory  that  it  is 
a  mere  matter  of  form  of  practice,  not  affecting  substantial 
rights  of  parties ;  ^  nor  is  it  indispensable  that  the  words  of 
the  statute  be  followed,  if  the  affidavit  contains  lano^uao'e  fullv 
equivalent  or  clearly  showing  the  grounds  specified  or  in- 
tended. So  an  affidavit  stating  that  the  action  is  broug-ht  to 
recover  damages  for  unlawfully  assaulting,  beating,  bruising 
and  shooting  sufficiently  shows  that  the  obligation  was  crim- 
inally incurred.^  So  will  an  affidavit  be  sufficient  which  con- 
tains a  statement  of  facts  that  will  upon  a  reasonable  construc- 
tion justify  a  belief  in  its  truth.^  Where  the  debt  is  past  due 
the  affidavit  must  show  the  nature  of  the  plaintiff's  claim,  that 
it  is  just,  the  amount  which  he  believes  the  plaintiff  ought  to 
recover  and  the  existence  of  any  one  of  the  grounds  enumer- 
ated; *  if  for  a  debt  before  due,  it  must  also  show  the  nature 
and  amount  of  the  claim,  that  it  is  just,  when  it  will  become 
due,  together  with  the  existence  of  one  of  the  enumerated 
grounds.'  The  affidavit  should  not  state  the  plaintiff's  mere 
belief,  as  that  the  defendant  has  absconded  with  the  intent  to 
defraud  his  creditors,  but  should  set  forth  the  facts  justifying 
such  belief,^  and  the  fraudulent  intent  must  be  proved.''  So 
an  affidavit  which  states  several  grounds  in  a  disjunctive  or 
alternative  manner  is  not  a  compliance  with  the  rule  that  the 
facts  must  be  positively  sworn  to,  and  hence  not  sufficient, 
but  must  allege  the  facts  in  a  positive  manner;  and  one  which 
states  the  grounds  alternatively  is  fatally  defective,  and  the 
attachment  may  be  discharged  for  that  reason.^    So  an  allega- 

Rep.  125 ;    Brainard  v.  Rittberger,  2  » R  S.,  sees.  5264-65. 

Clev.  Rep.  154.  SDunlevy  t.  Schartz,  17  O.  S.  640; 

1  Harrison  v.  King,  9  O.  S.  394;  Garner  v.  White.  23  O.  S.  192. 
Ganns  v.  Thorajison,  11  O.  S.  579;  ^Burruss  v.  Trant,  88Va.  980;  14 
Coaston  v.  Page.  9  O.  S.  397.  S.  E.  Rep.  845. 

2  Creasser  v.  Young,  31  O.  S.  57.  agchatzman  v.  Stump,  7  W.  L.  B. 

3  Emmett  v.  Yeigh,  12  O.  S.  335.  334  (Ham.  C.  P.,  1880) ;  Rogers  v. 
See  form  of  affidavit  in  this  case.  Elhs,  1  Handy.  48:  Drake  on  Attach- 

*R  S.,  sec.  5522.  ment,  sec.  101,  and  cases  cited. 


§  250.]  ATTACHMENT.  220 

tion  in  an  affidavit  that  a  defendant  fraudulently  or  criminally 
contracted  a  debt,  being  disjunctive,  is  insuificiont,  as  the  words 
"  fraudulently  and  criminally  "  are  separate  grounds.^  An  alle- 
gation of  an  account  due  the  plaintiff,  what  it  is  for,  when  it  is 
justly  due,  that  recovery  ought  to  be  had  therefor,  and  that 
the  defendant  is  a  non-resident,  is  sufficient  to  show  the  nature 
of  the  plaintiff's  claim;-  or  that  there  is  property  or  debts  of 
a  non-resident  defendant  which  may  be  appropriated  to  the 
payment  of  the  plaintiff's  claim  is  sufficient  to  justify  the 
plaintiff  to  proceed  at  once  and  make  service  by  publication 
as  soon  as  the  action  has  been  commenced.*  An  affidavit  has 
been  held  good  which  contains  all  the  requirements  of  the 
statute,  stating  positively  the  amount  due,  but  not  the  amount 
which  the  plaintiff  believes  he  ought  to  recover.*  A  plaintiff 
cannot  without  leave  of  court  amend  an  affidavit  in  order  that 
the  existence  of  fraud  in  fact  may  be  shown  so  as  to  validate 
the  proceedings,^  but  such  an  amendment  may  be  made  on 
leave  of  court,  and  it  is  not  necessary  that  a  new  levy  be 
made  thereafter;"  but  a  new  cause  of  action  existing  at  the 
time  of  the  commencement  of  the  action  cannot  be  brought 
in  by  amendment.^ 
Sec.  250.  General  form  of  affidavit. — 

[Caj)t/on.'] 

A.  B.,  the  plaintiff  herein  [or,  the  agent  or  attorney  of  the 
plaintiff  herein  J.  makes  oath  that  he  has  commenced  an  action 

against  the  said ,  defendant*  [describe  the  nature  of 

the  action,  as:  upon  a  promissory  note  made  by  said  defend- 
ant for dollars,  etc.;  or  any  other  action\  and  the  said  af- 
fiant,   ,  also  makes  oath  that  the  said  claim  is  just, 

and  that  the  said  plaintiff  ought,  as  he  the  deponent  believes, 

to  recover  thereon dollars.     He  also  makes  oath  that  the 

defendant  is  not  the  head  or  support  of  a  family,  and  has  not 
in  good  faith  the  maintenance  and  support  of  a  widowed 
mother  wholly  dependent  upon  him  for  support,  and  that  the 
property  sought  and  about  to  be  attached  in  this  action  is  not 
exempt  from  execution  and  is  not  the  personal  earnings  of 

1  Rogers   v.    Ellis,    1    Handy,    48;  « Maxwell  on  Code  Pldg.,  p.   585; 

Creasser  v.  Young.  31  O.  S.  57 ;  Bates  Struthers  v,  McDowell,  5  Neb.  491 ; 

on  Pleading,  285.  Wadsworth  v.  Cheweney,  13  Iowa, 

•  Constable  v.  White,  1  Kandy,  44.  576. 

^Vallette  v.  Bank,  2  Handy,  1.  "Brookmire  v.  Rosa,  34  Neb.  227; 

^  Sleet  V.  Williams,  21  O.  S.  82.  51  N.  W\  Rep.  840  (1892). 

*  Garner  v.  White,  23  O.  S.  192. 


230  ATTACHMENT.  [§  251. 

said  defendant,  for  services  rendered  within  throe  months 
prior  to  the  commencement  of  this  action,  which  said  personal 
earnino^s  amount  to  more  than  $150,  and  that  only  the  excess 
over  that  amount  is  sought  to  be  attached.  He  also  makes 
oath  that  said  defendant  {here  state  the  existence  of  any  of  the 
following  grounds  in  the  language  of  the  statute^  or  giving  fa^ts 

and  cir'cumstajices']  is  a  non-resident  of  county,  Ohio;  is 

about  to  convert  his  property  and  credits  or  a  part  thereof 
into  money  for  the  purpose  of  placing  it  beyond  the  reach  of 
his  creditors;  has  absconded  with  intent  to  defraud  his  cred- 
itors; so  concealed  himself  that  a  summons  cannot  be  served 
upon  him  ;  is  about  to  remove  his  property,  or  a  part  thereof, 
out  of  the  county  with  intent  to  defraud  his  creditors;  has 
property  or  rights  of  action  which  he  conceals;  has  assigned, 
removed  or  disposed  of,  or  is  about  to  assign,  remove  or  dis- 
pose of,  his  property,  or  a  part  thereof,  with  intent  to  defraud 
his  creditors;  fraudulently  or  criminally  contracted  the  debt. 
\If  garnishment  desired^  add:  And  said  atKant  further  makes 
oath  and  says  that  he  has  good  reason  to  and  does  verily  be- 
lieve that ,  of  and  within  said  county  of  ,  has 

property  of  the  said  defendant  in  his  possession  liable  to 
be  attached  in  this  action,  to  wit :  [description  of  propertyP^ 

Sec.  251.  Form   of  affidavit  stating  circumstances   and 
a  particular  ground.^ 

{Continue  from  ^  in   sec.  2o0.]     To   recover   the   sum   of 

dollars,  criminally  contracted  to   the  said  plaintitf  by 

said  defendant,  as  damages  for  divers  assaults  and  bat- 
teries committed  upon  the  person  of  the  said ,  plaint- 
iff, in  the  manner  and  form  as  charged  in  her  petition ;  and 

the  said  affiant, ,  says  that  the  claim  is  just,  and  that 

there  is  now  justly  due  to  the  said ,  as  damages 

which  she  has  sustained  by  reason  of  said  assaults  and  batter- 
ies, from  said  defendant,  the  said  sum  of dollars,  which 

she  ought  to  have  and  recover  from  said  defendant.     Affiant 
further  says  that  the  said  defendant  is  a  nofl-resident  of  the 
state  of  Ohio  and  that  he  criminally 
for  which  this  suit  has  been  brought. 


state  of  Ohio  and  that  he  criminally  incurred  the  obligation 


Note. —  McDowell  v.  Niins.  15  W.  L.  B,  359.     See  form  in  Constable  v. 
White,  1  Handy,  45. 

Affidavit  by  next  friend.^ 

[Caption.] 

The  said ,  being  first  duly  sworn,  deposes  and  says 

that  she  has  commenced  an  action  in  said  court,  as  next  friend 

for ,  an  infant,  against  the  said ,  defendant, 

etc. 

Note. —  This  has  been  lield  a  sufficient  declaration  of  agency.    McDowell 
V.  Ninas,  15  W.  L.  B.  359. 


§§  252,  253.]  ATTACHMENT.  231 

Sec.  252.  Undertaking,  when  requi red. —  When  a  writ 
of  attachment  is  sued  out-  on  the  ground  that  the  defendant 
is  a  non-resident  of  the  state,  it  is  unnecessary  for  the  plaint- 
iff to  give  an  undertaking;  in  all  other  cases,  however,  the 
writ  shall  not  bo  issued  without  an  undertaking  as  required 
bv  statute.^  Where  an  attaching  creditor  files  the  proper 
affidavit  entitling  him  to  an  attachment,  his  failure  to  file  the 
statutory  undertaking  for  the  indemnity  of  the  defendant 
does  not  render  the  attachment  absolutely  void,  but  it  is  a 
mere  irregularity,  of  which  the  defendant  in  attachment  alone 
can  take  advantage.-  And  so  the  omission  of  the  name  of 
the  surety  in  the  body  of  the  instrument  does  not  affect  the 
validity  thereof  or  the  obligation  of  the  surety.*  This  rule  has 
been  extended  to  an  obligor  in  an  undertaking  for  a  second 
trial.*  A  defendant  may  upon  reasonable  notice  to  the  plaint- 
iff move  to  require  the  latter  to  give  additional  security.  If 
the  court  deem  the  bond  insufficient,  it  may  vacate  the  at- 
tachment and  order  a  restitution  of  the  property. •' 

The  following  will  answer  as  a  form  of  undertaking:^ 

We  bind  ourselves  to  the  defendants, , 

and ,  that  the  plaintiff, ,  shall  pay  to  the 

said  defendants  the  damages,  not  exceeding  $— — ,  which  they 
may  sustain  by  reason  of  the  attachment  in  this  action,  if  the 
order  therefor  be  wrongfully  obtained. 

Witness  our  hands  and  seals  this dav  of ,  IS — . 

-^ .     [Seal.'] 

.     [Seal.] 

.     ISeal] 

Sec.  253.  Order  of  attachment —  Issue,  return  and  exe- 
cution.— The  order  of  attachment  is  directed  and  dehvered 
to  the  sheriff,"  requiring  him  to  attach  such  property  as  is 
provided  may  be  reached  belonging  to  the  defendant  within 
the  county  which  is  not  exempt  by  law ;  the  process  may, 
however,  be  issued  to  the  sheriffs  of  different  counties,  and 
several  may,  at  the  option  of  the  plaintiff,  be  issued  at  the 
same  time  or  in  succession.®  The  writ,  if  sued  out  at  the  com- 
mencement of  the  action,  shall  be  returned  at  the  same  time 

1 R.  S.,  sec.  5523.  *  R.  S.,  sec.  5561. 

2  0'Farrell  v.  Stockman,  19  O.  S.  bFrotn  Alexander  v,  Jacoby,  23 
296.  O.  S.  358. 

3  McLain  v.  SimitiKton.  37  O.  S.  484.        ^  r.  s.,  sec.  5534. 
*  Partridge  v.  Joues,  -iS  O.  S.  375.  8  R.  a,  sec.  5525. 


232  ATTACHMENT.  [§  253. 

the  summons  in  the  case  is  required  to  be  returned.^  When 
there  are  several  orders  of  attachment  against  the  same  de- 
fendant thev  shall  be  executed  in  the  order  in  which  they  are 
received  by  the  officer  and  in  the  manner  prescribed  by  the 
statute.^  When  several  orders  of  attachment  are  issued  in 
different  counties  and  at  the  same  time  or  in  succession,  a 
city  is  to  be  considered  in  such  cases  as  a  county.  And 
when  evidences  of  indebtedness  are  taken  on  a  writ  sent  to 
another  county,  a  receiver  in  such  county  may  take  posses- 
sion thereof  and  proceed  to  collect  them  as  in  any  other  case.^ 
Issuing  a  general  execution  may  not  be  considered  as  a  waiver 
or  abandonment  of  the  priority  acquired  by  the  attachment, 
though  the  proceeds  of  such  sale  should  be  distributed  accord- 
ing to  such  priority.*  The  officer  is  required  to  go  to  the 
place  where  the  property  is  and  declare  in  the  presence  of  two 
freeholders  that  he  attaches  the  property.^  In  order  to  make 
an  effectual  attachment  of  personal  property  it  must  be  taken 
into  the  custody  of  the  officer.  It  need  not  in  all  cases  be 
actual,  but  must  in  every  case  be  such  custody  as  the  nature 
of  the  subject  attached  will  admit,**  The  sheriff  is  entitled  to 
the  exclusive  possession  of  partnership  property,  where  he  has 
attached  the  interest  of  an  individual  partner  therein,  until  he 
sells  that  interest.''  A  levy  not  made  in  the  presence  of  two 
freeholders  is  binding  upon  third  parties,  but  maybe  set  aside 
by  the  defendant ;  but  it  is  well  performed  if  the  declaration 
of  levy  IS  made  in  the  presence  of  persons  casually  present.* 
An  official  return  made  by  a  sworn  officer  in  reference  to 
facts  which  it  is  his  duty  to  state  in  it  is,  as  between  the  par- 
ties and  privies  to  the  suit,  as  well  as  others  whose  rights  are 
necessarily  dependent  upon  it,  conclusive  as  to  the  facts 
therein  stated  until  vacated  or  set  aside  by  due  course  of  law.' 

1  R,  S.,  sec.  5526.  v.  Smith,  13  O.    S.   79 ;    Murphy   v. 

^  R.  S.,  sees.  5527,  5528.  Swadener,  33  O.  S.  85. 

3  Finell  v.  Burt.  2  Handy,  204.  •  Stewart  v.  Hunter,  1  Handy,  22- 

■*  Liebman  v.  Ashbacker,  36  O.  S.  34  As  to  seizure  of  partner's  share,  see 

^  R.  S..  sec.  5528.  Nixon  v.  Nash,  12  O.  S.  647 ;  Place  v. 

''  Root  V.  Railroad  Co.,  45  O.  S.  227 ;  Sweetzer,    16    O.    142 ;    Sutcliflfe    v. 

1    Wade  on   Attachment,   sec.    129 ;  Dohrman,  18  O.  181 ;  Story  on  Part., 

Drake    on    Attachment,    sec.    292a;  sees.  263,  264. 

Waplcs  on  Attachment,  p,  175;  Free-  f'Outcalt  v.  Burnett,  1  Handy,  404. 

man  on  Execution,  sec.  262;  Minor  i^  Phillips  t.  El  well,  14  O.  S.  243,244, 


§  254.]  ATTACHMENT.  23S 

Sec.  254.  What  may  be  attached. —  It  is  provided  by  stat- 
ute that  lands,  tenements",  goods,  chattels,  stocks,  mr  interests 
in  stocks,  rights,  credits,  money,  and  the  effects  of  a  defendant 
in  his  county  not  exempt  by  law,  may  be  attached  and  applied 
to  the  payment  of  the  claim  of  the  attachment  creditor.' 
And  where  a  debtor  has  sold  his  real  estate,  the  purchaser 
who  still  owes  the  purchase-money  thereon  may  be  served  as  a 
garnishee  and  required  to  hold  such  money  subject  to  the 
orders  of  the  court.  He  may,  however,  pay  the  money  into 
court  and  have  the  real  estate  released,  the  court  holding  the 
same  in  lieu  thereof.^  An  attachment  sued  out  against  an  un- 
divided part  of  real  estate  held  by  an  heir  under  a  devise 
cannot  be  available  by  a  purchaser  who  has  acquired  title 
thereto  under  a  sale  by  the  executor  of  the  estate  of  the  an- 
cestor of  such  heir.'  Courts  have  held  that  a  steamboat,*  the 
interest  of  a  mortgagor  in  chattel  property  of  which  he  is  in 
possession  after  conditions  broken,^  an  equitable  interest  in 
real  estate,^  and  notes  secured  by  mortgage,^  may  be  attached. 
And  when  judgment  is  rendered  for  the  plaintiff  in  an  action 
in  which  a  party  owing  notes  secured  by  mortgage  is  made  a 
garnishee,  the  notes  and  mortgages  are  in  legal  effect  assigned 
to  the  plaintiff  in  attachment  so  far  as  may  be  necessary  to 
satisfy  his  judgment,  and  he  may  maintain  an  action  to  fore- 
close the  mortgage.^  An  indebtedness  due  a  copartnership 
cannot  be  garnished  in  the  hands  of  a  debtor  to  pay  the  debt 
of  one  of  the  partners,^  although  the  interest  of  a  partner  in  a 
partnership  generally  may  be  attached  to  pa}''  his  individual 
liability;  and  the  sheriff  may  have  the  exclusive  possession  of 
the  property  until  he  sells  the  interest  attached,  subject  to  the 
right  of  the  copartner  to  give  bond  to  regain  possession.'"  The 
interest  of  a  stockholder  in  a  private  corporation  represented 

and  caBes  cited.     As  to  effect  of  ir-  457 ;  Root  v.  Davis,  51  O.  S.  — ;  31 

regularities,  see  Mitchell  v.  Eyster,  7  W.  L.  B.  148. 

O.  257.  6  Northern  Bank  v.  Nash,  1  Handy, 

1  R  S.,  sec.  5524.  156. 

2  Core  V.  Oil  Land  Co.,  40  O.  S.  636.  i  Alsdorf  v.  Reed,  45  O.  S.  653. 

•''  Smyth  V.  Anderson.  31  O.  S.  144.        8  Alsdorf  v.  Reed,  supra;  Secor  v. 
^Secrist  v.  Insurance  Co..  19  O.  S.     Witter,  39  O.  S.  218;  Edwards  v.  Ed- 
116.  wards.  24  O.  S.  411. 

5  Carty  v.  Fenstemaker,  14   O.  S.        9  Myers  v.  Smith.  29  O.  S.  120. 

10  Stewart  v.  Hunter.  1  Handy,  23. 


234:  ATTACHMENT.  [§  254. 

by  certificates  of  shares  registered  in  his  name  may  be  reached 
by  garnishee  process  served  upon  the  corporation ;  and  if  the 
owner  thereof  has  ])ledoed  such  certificates  as  security  for  a 
debt,  with  power  to  sell  and  transfer  the  same,  an  attaching 
creditor,  upon  default  of  payment  of  his  debt,  may  reach  the 
surplus  after  the  payment  of  the  debt  due  the  pledgee.^  Money 
due  an  heir  from  an  administrator  cannot  be  garnished  until 
after  an  order  of  distribution  has  been  made,  as  there  is  no 
indebtedness  before  the  making  of  such  order  ;2  nor  can  an 
amount  due  on  a  promissory  note,  which  has  been  transferred 
by  indorsement,  be  garnished  in  the  hands  of  the  maker, 
whether  he  has  had  notice  of  the  transfer  or  not,  as  a  debt  due 
to  the  original  holder.^ 

"While  there  is  no  provision  for  a  sale  of  indebtedness  taken 
under  an  order  of  attachment,  the  code  provides  that  the 
same  may  be  delivered  to  a  receiver  who  may  be  appointed 
to  collect  and  settle  the  same  so  that  the  proceeds  may  be  ap- 
plied to  the  payment  of  the  judgment.* 

A  subject  which  has  l^een  attended  with  more  difficulty 
is  the  attachment  of  proi^erty  in  the  hands  of  public  offi- 
cers or  which  is  in  the  custody  of  the  law.  At  common  law 
public  ofiicers,  such  as  sheriffs,  clerks,  receivers,  etc.,  were 
not  liable  to  garnishment,'  and  it  was  also  held  in  Ohio  that 
money  in  the  hands  of  public  officers  could  not  be  garnished 
because  contrary  to  public  policy.  But  by  statute*^  the  pro- 
cess may  be  served  on  a  sheriff,  coroner,  clerk,  constable,  mas- 
ter commissioner,  marshal  of  a  municipal  corporation,  or  other 
officers,  having  in  their  possession  any  money,  claim  or  any 
other  property  of  the  defendant  in  the  attachment  proceed- 
ings, or  in  which  he  has  an  interest,  which  will  bind  the 
money  in  their  hands  from  the  time  of  such  service.  This 
statute  has  been  held  broad  enough  to  reach  money  in  the 
hands  of  guardians  and  administrators.'     To  attach  property 

1  Norton  v.  Norton,  43  O.  S.  509:  *Finnel  v.  Burt,  2  Handy,  202.  Sec 
Haldeman  v.  Railroad  Co.,  2  Handy,     sec.  262,  post. 

101 ;  National  Bank  v.  Railway  Co.,  5  Drake  on  Attachment,  sec.  503 
21  O.  S.  221.  et  seq. 

2  Beutley  v.  Streathers.  5  \V.  L.  B.        6  R.  s.,  sec.  5531. 

-288.  "^  Arbaugh  v.  Myers,  9  W.  L.  B.  64 

'Knisely  v.  Evans,  34  O.  S.  158.  (P.  P.). 


§  255.]  ATTACH MKNT.  235 

held  by  an  oflScer  under  a  legal  process  be  must  be  proceeded 
against  as  a  garnishee,  and  it  is  not  sufficient  that  he  be  merely 
notified  b}'"  the  officer  holding  the  writ  of  attachment  that  he 
holds  the  same  and  by  virtue  of  it  attached  the  property.^ 
Nor  can  personal  property  held  on  attachment  by  one  officer 
be  levied  upon  and  seized  under  the  writs  in  the  hands  of 
other  officers.  If  the  writ  is  not  placed  in  his  hands  he  must 
be  proceeded  against  as  a  garnishee;^  and  this  rule  is  not 
changed  by  the  assent  of  the  officer  holding  the  property  to 
the  subsequent  so-called  levy.* 

Exemption  laws  apply  as  well  to  property  levied  upon  by 
attachment  as  by  execution,  and  the  debtor  is  not  prevented 
from  making  his  selection  *  even  after  an  order  has  been  made 
for  the  sale  of  attached  property.'  The  earnings  of  a  debtor 
for  three  months  next  proceeding  a  levy  of  attachment,  or  the 
issuance  of  an  order  for  the  collection  of  a  debt,  where  the 
same  were  necessary  for  the  support  of  his  family,  are  exempt 
and  cannot  he  attached." 

Sec.  255.  Delivery  of  property  to  party  found  iu  posses- 
sion—  Redelivery  bond. —  If  the  owner  or  party  in  possession 
desires  to  retain  the  property  attached,  he  may  do  so  by  giv- 
ing the  undertaking  required  by  statute,^  to  be  kept  by  him 
until  the  termination  of  the  action.  The  execution  of  the  re- 
delivery bond  will  not  opei-ate  as  a  bar  to  an  action  on  the 
attachment  bond  proper.*  The  bond  should  be  based  u])on 
the  interest  of  the  defendant  in  the  property  appraised,'  but 
it  is  not  invalid  even  though  the  property  be  not  appraised, 
and  is  approved  by  the  sheriff  instead  of  by  the  court. ^"^  If 
the  defendant  so  desires,  he  may  furnish  a  redelivery  bond 
for  a  whole  or  for  a  part  of  the  property  attached,"  The 
theory  upon  which  the  bond  is  given  is,  that  the  defendant 
will  perform  the  judgment  of  the  court,  and  does  not  have 
special  reference  to  payment  or  delivery  to  the  plaintiff  in  the 

1  Lock  V.  Butler,  19  O.  S.  587.  6  Snooks  v.  Suetzer,  25  O.  S.  516; 

2  Lock  V.  Butler,  19  O.  S.  587.  Baer  v.  Otto,  34  O.  S.  IL 
s  Bailey  v.  Childs,  46  O.  S.  557  ^R.        '  R.  S.,  sec.  5529. 

S.,  sec.  5535).  8  Alexander  v.  Jacoby,  23  O.  S.  358. 

«R.  S.,  sec.  5441.  9  Stewart   v.  Hunter,  1  Handy,  22. 

B  Close  V.  St.  Clair,  38    O.    S.  530.  1«  Sheldon  v.  Sharpless,  1  W.  L.  M. 

See,  also,  Chilcote  v.  Couley,  36  O.  S.  42. 

-645 ;  R.  S.,  sees.  5426-43.  n  Keith  v.  Moore,  3  O.  C.  C.  432. 


236  ATTACHMENT.  [§  256. 

action,'  but  it  is  to  enable  him  to  supersede  all  proceedings 
under  the  attachment  by  giving  security  to  perform  any  judg- 
ment that  ma}^  be  rendered  against  him  in  the  action,^  and  is 
intended  also  to  take  the  place  of  the  attachment  proceeding 
and  of  the  property  seized  by  virtue  of  the  writ,  the  sureties 
thereon  being  bound  to  the  same  extent  as  the  property  of 
the  debtor  would  have  been  bound  had  no  undertaking  been 
given.'  It  is  not  invalidated  even  though  the  name  of  the 
surety  be  omitted  in  the  body  thereof.*  The  execution  of  the 
redelivery  bond,  however,  will  not  operate  to  estop  the  de- 
fendant from  moving  to  discharge  the  attachment.^  Forms 
of  bonds  are  always  found  with  the  proper  officials,  so  that  it 
seems  useless  to  insert  them  here. 

See.  256.  Proceedings  against  a  garnishee. —  It  is  provided 
that  when  the  plaintiff  believes  that  any  person,  partnership  or 
corporation  has  property  belonging  or  due  the  defendant, 
upon  making  the  proper  affidavit  to  that  effect  ®  he  may  have 
such  person,  partnership  or  corporation  served  as  a  garnishee 
with  a  copy  of  the  order  of  attachment,  requiring  him  to  ap- 
pear as  provided  by  statute  and  answer  under  oath  as  to 
what  property  may  be  in  his  possession  or  under  his  control, 
disclosing  the  amount  owing  by  him  to  the  defendant,  whether 
due  or  not ;  and,  if  a  corporation,  any  stock  therein  held  by  or 
for  the  benefit  of  the  debtor.^  Garnishment  is  regarded  by 
some  authorities  as  a  suit  and  the  summons  therein  as  process.' 
Where  the  officer  cannot  take  possession  of  the  property  in  the 
hands  of  the  garnishee,  it  is  necessary  that  two  services  be 
made,  viz. :  one  to  bring  in  the  garnishee,  that  is,  the  written 
notice  requiring  him  to  appear  in  court  and  answer,  and  the 
other  to  bring  the  property   before  the  court,  which  is  the 

1  King  V.  Snow,  2  Disn.  73.  *  Morain  v.  Simington,  7  W.  L.  R 

2  Myers  v.  Smith,  29  O.  S.  120.  38. 

3  Janes  v.  Piatt,  47  O.  S.  262.  See,  ^  Eagan  t.  Lunisden,  4  W.  L.  G. 
also,  Sutro  v.  Bigelow.  31  Wis.  527 ;  161. 

Hanna  v.  Int  Pet  Co..  23  O.  S.  622;  ^Ante,  sec.  249. 

Methodist   Church   v.  Booker.  18   N.  "  R  S.,  sees.  5530-5547. 

Y.  463;    Lathrop   v.   Southworth,  5  8  Moore  v.   Stanton,   22   Ala.  831; 

Mich.  448 :  Towle  v.  Towle,  46  N.  H.  Tunstle  v.  Worthington,  Hemp.  662 ; 

434 ;    Hurd   v.   Lodge,  20   Pick.  58 ;  Middleton  Paper  Co.  v.  Rock  River 

Sheppard  v.  Pebbles,  38  Wis.  373.  Paper  ^Co.,  19  Fed.  Rep.  252. 


1 


§  256.]  ATfAOHMENT.  237 

order  of  attachment.*  It  being  necessary,  therefore,  that  a 
copy  of  the  order  be  served  upon  the  garnishee  to  bind  the 
property  in  his  hands,  he  cannot  waive  service  thereof  because 
there  is  nothing  attached  in  his  hands  unless  the  service  is 
properly  made.^  If  the  garnishee  does  not  reside  in  the 
county  in  which  the  order  of  attachment  is  issued,  the  process 
may  be  served  by  the  proper  officer  of  the  county  in  which 
he  resides,  or  may  be  personally  served ;  ^  but  an  order  of  at- 
tachment cannot  be  served  on  a  garnishee  who  is  a  non-resi- 
dent of  the  state.* 

Any  property  rights  or  credits  found  in  the  hands  of  a  gar- 
nishee belongino^  to  the  defendant  in  attachment  are  bound 
from  the  time  of  service  of  the  order,  and  in  case  of  a  public 
oflBcer  it  will  be  a  sufficient  cause  for  not  paying  the  money 
over  to  the  plaintiff.'  If  a  corporation  be  the  attaching  cred- 
itor, it  may  by  process  upon  itself  reach  the  interest  of  a 
stockholder  in  the  property  of  the  corporation  represented  by 
the  certificates  of  shares  which  he  holds,  as  an  attaching 
creditor  may  reach  money  or  credits  in  his  own  hands  by 
garnishee  process  as  well  as  any  other  creditor.®  If  property 
be  found  in  the  possession  of  the  garnishee  belonging  to  the 
defendant,  or  if  it  appear  that  he  is  in  debt  to  the  defendant, 
the  court  may  order  the  delivery  of  the  same,  or  the  payment 
of  the  money  into  court,  or  allow  him  to  retain  the  amount 
upon  the  execution  of  an  undertaking  to  the  plaintiff  to  the 
effect  that  the  property  shall  be  forthcoming  or  the  money 
paid,  as  the  court  may  direct^  The  garnishee  may,  however, 
pay  the  money  owing  the  defendant  to  the  officer  holding  the 
order,  and  shall  be  discharged  for  any  money  so  paid;^  and 
he  may  also  be  discharged  if  judgment  be  rendered  against 
the  defendant,  or  if  the  garnishee  deliver  up  all  property  and 
credits  of  the  defendant  in  his  possession   or  pay  all  of  the 

IR   S.,  sec.  5530;    Epstein  v.  Sa-  6  Norton  v.  Norton,  43  O.  S.  509; 

lorgue,  6  Mo.  App.  8;  Mosher  v.  Bar-  Lyman  v.  Wood,  42  Vt.  113;  Coble 

telow,  6  Mo.  598.  v.  Noniemaker,  78  Pa.  St.  501 ;  Drake 

2Hebel    v.    Amazon    Ins.    Co.,  33  on  Attachment,  sec.  543.    See  Knight 

Mich.   400;    Raj-mond    v.  Rockland  v.  Clyde,  12  R.  L  193;  Crosby  v.  Har- 

Co.,  40  Conn.  401.  low,  38  Am.  Dec.  276. 

3  R.  S.,  sec.  5533.  7  R  s.,  sec.  5550. 

*  Squair  v.  Shea,  26  O.  S.  645.  8  r.  s.,  sec.  554a 

6R  S.,  sec.  5531. 


238  ATTACHMENT.  [§  256. 

money  due  from  him;'  or,  when  the  undertaking  has  been 
given  by  the  defendant,  as  it  is  provided  he  may  do,  and  the 
garnishee  appears  and  answers,  he  may  on  application  of  the 
defendant  be  discharged.^  But  the  defendant  cannot  ask  such 
discharge  because  the  answer  fails  to  show  any  property  in 
the  hands  of  the  garnishee,  as  the  plaintiff  is  not  precluded  b}'' 
such  an  answer;  and  when  the  garnishee  either  fails  to  answer, 
or  the  disclosure  is  not  satisfactory  to  him,  or  if  he  fail  to  com- 
ply with  the  order  of  the  court  to  pay  the  money  or  deliver 
the  property,  or  to  give  an  undertaking,  he  may  be  proceeded 
against  by  several  actions  on  that  ground,  and  judgment  may 
be  had  in  favor  of  the  plaintiff  for  whatever  property  or 
credits  may  be  found  in  his  hands  belonging  to  the  defendant.' 
The  garnishee  may  also  be  proceeded  against  as  for  contempt 
when  he  fails  to  appear  and  answer.*  If  he  answers  that  he 
owes  the  defendant  nothing,  but  that  the  defendant  had  in  his 
possession  a  note  which  had  been  transferred  to  another  party 
before  service  of  process,  the  plaintiff,  if  he  disputes  that 
fact,  cannot  move  to  make  the  third  party  who  holds  the  note 
a  party  to  the  action,  but  must  pursue  the  remedy  provided 
against  the  garnishee  for  an  unsatisfactory  answer ;  ^  and  the 
right  of  action  against  a  garnishee  passes  by  an  assigmnent 
of  the  judgment  obtained  against  the  defendant  in  attach- 
ment, and  an  action  may  be  brought  thereon  by  the  assignee 
in  his  own  name ;  ^  but  a  garnishee  is  not  liable  to  an  action 
under  the  code  for  failing  to  answer  where  no  jurisdiction  has 
been  acquired  against  the  defendant  in  attachment;'  nor  can 
judgment  be  rendered  against  him  before  judgment  has  been 
obtained  against  the  defendant.*  An  action  brought  to  en- 
force a  liability  against  a  partnership  under  the  provisions  of 

1  R.  S.,  sec.  5553.  ^  Vallette  v.  Bank,  2  Handy,  1.     It 

2  Myers  v.  Smith,  29  O.  S.  120.  has  been   held   that  an   entry  of  a 

3  R  S.,  sec.  5551 ;  Myers  v.  Smith,  judgment  by  a  justice  of  the  peace 
supra;  18  O.  S.  134 ;  24  O.  S.  481 ;  26  against  a  garnishee  upon  his  answer 
O.  S.  645 ;  2  C.  S.  C,  R  56.  confessing  his  indebtedness    before 

*  R  S.,  sec.  5549.  judgment  against  the  defendant  is 

5  Sensheimer  v.  Huttenbauer,  2  C.  S.  regarded  as  a  mere  clerical  error, 
C.  R  56.  and    not    cause    for    reversing    the 

6  Whitman  v.  Keith,  18  O.  S.  134.     judgment    against  such    judgment 
■?  Pope  V.  Insurance  Co.,  24  O.  S.    debtor.    Harper  v.  Richards,  12  O.  S. 

481.  219. 


I 


§  257.]  ATTACHMENT.  239 

the  statute  may  be  either  in  the  name  of  the  firm  or  in  the 
names  of  the  persons  who  compose  it,  at  the  option  of  the 
plaintiff.^ 
Sec.  257.  Service  upon  garnishee  and  his  liability. —  If 

the  garnishee  be  a  person,  a  copy  of  the  order  and  notice 
should  be  served  on  him  personally  or  left  at  his  usual  place 
of  residence;  if  a  partnership,  it  should  be  left  at  its  usual 
place  of  business  within  the  county ;  ^  if  a  corporation,  with 
the  president  or  other  principal  officer,  or  the  secretary, 
cashier  or  managing  agent  thereof;  if  a  railroad  company, 
service  may  be  made  upon  any  regular  ticket  or  freight  agent 
in  the  county  where  the  railroad  company  is  located.^  A 
foreign  insurance  company  may  be  bound  by  service  upon  its 
managing  agent.^  But  where  two  companies  are  attempted 
to  be  made  garnishee,  one  of  which  is  located  where  the  suit 
is  brought  and  the  other  in  another  county,  both  being  do- 
mestic companies,  the  order  must  be  issued  to  the  counties 
in  which  each  is  located;^  and  a  railroad  company  incorpo- 
rated in  one  state,  doing  business  in  another,  under  the  pro- 
visions of  the  code  is  liable  to  process  of  garnishment  in  the 
latter  state  in  the  same  manner  as  are  domestic  corporations.^ 

Where  service  by  publication  is  not  completed  until  eight 
months  after  a  summons  has  been  returned  not  served,  it 
does  not  invalidate  the  proceedings,  as  no  time  is  fixed  by  the 
statute  within  which  service  by  publication  must  be  made.'^ 
A  foreign  dissolved  corporation  may  be  served  with  process 
by  publication  the  same  as  if  it  were  not  dissolved.^ 

An  order  of  attachment  binds  the  property  from  the  time 
of  service,  and  the  garnishee  stands  liable  to  the  plaintiff  in 
attachment  for  the  amount  of  money  and  credits  in  his  hands 
due  the  defendant  from  the  time  of  such  service.  When  the 
property  attached  is  in  the  hands  of  a  consignee,  his  lien 
thereon  is  not  affected  thereby.''  And  so  money  or  any 
claim  garnished  in  the  hands  of  an  officer  binds  the  same 

1  Whitman  v.  Keith,  18  O.  S.  134,  6  penn.  R.  R.  Co.  v.  Peoples,  31  O.  S. 
148.  537. 

2  Whitman  v.  Keith,  18  O.  S.  1.S4.  '  Bacher  v.  Shawhan,  41  O.  S.  271. 
8R.  S.,  sec.  5554.  « Valletta  v.  Bank,  2  Handy,  1. 
<Rocke  V.  Raney.  15  MV.  L.  B.  333.        9  R  S.,  sees.  5530-5538. 

*  Conahau  v.  CulKn,  2  Disn.  1. 


^40  ATTACHMENT.  [§  258. 

from  the  time  of  service  of  process  of  garnishment,^  although 
money  received  by  a  sheriff  on  execution  cannot  be  attached 
in  his  hands.- 

In  attaching  property  held  under  legal  process  it  is  not 
sufficient  that  he  be  merely  notified  by  an  officer  holding  the 
writ  that  he  holds  the  same  and  by  virtue  thereof  attaches 
the  property.^  The  levy  of  an  attachment  made  without  pro- 
cess of  garnishment,  in  the  same  manner  as  in  execution,  has 
no  greater  force  than  a  simple  levy  of  execution,*  Where 
service  of  garnishment  process  has  been  made  upon  a  bank 
which  has  given  a  certificate  of  deposit  for  a  certain  amount 
of  money  but  mailed  the  same  just  prior  to  the  service  of  such 
process,  it  will  not  be  bound  by  such  service,  as  the  certificate 
passed  completely  out  of  the  hands  of  the  bank  when  it  was 
mailed  to  the  owner.' 

The  rights  of  a  mortgagee  of  personal  property  who  pur- 
chases a  claim  secured  by  a  prior  attachment  lien  thereon  ac- 
quires an  equitable  lien  as  against  an  attachment  levied  subse- 
quently to  the  mortgage.  A  garnishee  is  still  liable  to  pay 
the  interest  on  his  indebtedness  to  the  defendant,  even  after 
service  of  garnishment  process  upon  him,  and  before  the  pro- 
ceedings are  concluded.  If  there  are  circumstances  varying 
this  rule,  they  may,  like  any  other  defense,  be  shown.^ 

If  any  question  either  of  law  or  fact  is  raised  as  to  the 
liability  of  a  garnishee  upon  his  answer,  it  cannot  be  disposed 
of  on  a  summary  motion,  but  the  plaintiff  must  pursue  his 
remedy  against  the  garnishee  as  for  an  unsatisfactory  answer." 

Sec.  258.  Answer  of  garnishee. —  The  garnishee  is  re- 
quired to  make  his  answer  before  the  clerk  of  the  court  in  the 
county  in  which  he  resides,  or,  if  outside  of  the  state,  before 
the  clerk  of  the  county  in  which  lie  was  served.'^  The  clerk 
is  required  to  transmit  the  same  to  the  county  where  the  suit 
is  pending  in  the  same  manner  as  depositions  are  forwarded. 

1 R  S.,  sec.  5531,  Mackay  v.  Hodgson,  9  Pa.  St  468 ; 

2  Dawson  v.  Holcomb.  1  O.  S.  275  Norris  v.  Hall,  18  Me.  332 ;  Ga.  Ins. 
(1834).  Co.  V,  Oliver.  1  Gra.  38 ;  Prescott  v. 

3  Lock  V.  Butler,  19  O.  S.  587.  Parker,    4     Mass.    170;     Stevens    v. 
*  Sl^orten  v.  Drake,  38  ©.  S.  76.  Gwatliney,  9  Mo.  636. 

5  Howes  V.  Hartness.  11  O.  S.  449.  '  Martin  v.  Gayle,  3  Disn.  86. 

eCandee  v.  Webster,  9  O.  S.  453;        8R  S.,  sec.  5533. 


I  258.]  ATTACHMENT.  241 

The  garnishee  must  answer  under  oath  all  questions  put  to 
him  concerning  property  in  his  possession,  or  money  or  cred- 
its due  the  defendant,  and,  if  a  corporation,  any  stock  therein 
held  by  or  for  the  benefit  of  the  defendant  at  or  after  the 
service  of  notice.^  It  is  not  essential  that  technical  rules  of 
pleading  be  followed,  or  that  the  nature  and  character  of  his 
defense  to  the  judgment  be  set  forth  at  length,  but  he  is  re- 
quired to  disclose  every  fact  within  his  knowledge  which  may 
show  that  he  ought  not  to  be  charged.  If  he  is  in  doubt  as  to 
his  liability  the  simple  fact  should  be  stated ;  if  he  has  no 
propert}""  belonging  to  the  defendant,  he  should  so  state.  A 
garnishee  mav,  however,  set  up  such  defenses  as  he  mav  have 
in  order  to  protect  himself,  as  where  the  property  sought  to 
be  recovered  has  been  attached  by  process  issued  by  a  court 
in  another  state ;2  or  that  a  former  garnishment  has  been  is- 
sued and  levied  thereon  ;^^  or  that  the  plaintiff's  judgment  has 
been  satisfied ;  *  or  where  the  action  is  brought  by  a  foreign 
partnership  in  its  firm  name  when  it  should  be  in  their  in- 
dividual names  as  in  other  cases.^  He  cannot,  however,  set 
up  a  right  in  the  defendant  to  hold  the  money  in  his  hands 
under  the  exemption  laws,"  or  that  he  was  absent  from  home 
at  the  time  of  the  service,  and  that  his  agent,  without  any 
knowledge  of  the  service  of  the  process,  paid  the  money  over 
to  the  defendant  before  he  had  any  knowledge  of  the  pro- 
ceedings.'' If  the  answer  is  not  satisfactory  to  the  plaintiff 
he  may  prosecute  an  independent  action  against  the  garnishee 
upon  that  ground ;  ^  or  a  special  examination  may  be  had  by 
a  commissioner  appointed  for  that  purpose.^ 

In  some  states  the  answer  of  the  garnishee  is  regarded  as 
conclusive,  while  in  others  it  is  considered  mevQij  prima  facie 
and  may  be  controverted;  ^*  but  the  practice  in  Ohio  seems  to 
be  tiiat  plaintiff,  when  the  garnishee  answers  and  denies  that 
he  has  any  money  in  his  hands  belonging  to  the  defendant, 

1  R.  S.,  sec.  5547.  Clark  v.  Averill.  76   Am.  Dec.    131 ; 

2  B.  &  O.  R.  R.  V.  May,  25  O.  S.  347.     Staniels  v.  Raymoud.  4  Cush.  314. 

3  Critchell  v.  Cook,  2   W.  L.  B.  97.         '  Couley  v,  Chilcote.  supra. 

*  Gleason  v.  Gage.  2  Allen.  410.  «  Myers  v.  Smith,  29  O.  S.  120  ;  Als- 

5  Critchell  v.  Cook.  2  W.  L.  B.  97.  dorf  v.  Reed,  45  O.  S.  653. 

6  Conley  v.  Chilcote,  25  O.  S.  320.  » Whitman  v.  Keith,  18  O.  S.  134. 
Contra.  Mull  v.  Jones.  33  Kan.  112:  iti  Drake  on  Attach.,  sec.  651. 

16 


242  ATTACHMENT.  [§§  259,  260. 

or  when  the  answer  is  unsatisfactory  for  any  reason,  should 
bring  an  independent  action  against  the  garnishee,  as  the  de- 
fendant woukl  be  entitled  to  if  he  had  been  compelled  to  sue 
the  debtor.^ 
Sec.  259.  Form  of  answer  of  garnishee. — 

[Cajytioti  and  funnal  aoermejitsJ] 

E.  F.,  garnishee,  says :  That  he  denies  that  he  has  now,  or 
that  he  had  at  the  time  he  was  served  with  process  herein,  or 
at  any  time  since  then,  any  property  of  any  description  in  his 
possession  or  under  his  control  belonging  to  said  defendant, 
or  that  he  was  then,  or  at  any  time  since  then,  indebted  to 
said  defendant,  or  has  or  had  then,  or  at  any  time  since  then, 
the  control  or  agency  of  any  property,  moneys,  credits  or 
effects  of  said  defendant. 

Wherefore  this  respondent  asks  that  he  be  dismissed  from 
this  action. 

See.  260.  Answer  of  garnishee  hank. — 

[Capfloji.'] 

That  the  business  hours  of  their  bank  are  from o'clock 

A.  M.  until o'clock  P.  M. ;   that  process  and  notice  of  the 

attachment  was  not  served  on  either  of  the  partners  until 

after o'clock  on  the  evening  of  :  was  then  served 

upon  them  at  their  dwelling-house.    That  during  the  forenoon 

of  the  same  day  the  said  bank  had  collected  for  F.  C.  M. 

dollars,  for  which,  by  his  request,  they  issued  a  certificate  in 
the  following  terms :  [copy  of  certijicate] ;  that  this  certifi- 
cate, at  the  request  of  said  F.  C.  M.,  was  duly  mailed  by 
the  said  bank,  at  C,  on  the  day  of  its  date,  during  business 

hours,  in  an  envelope  directed   to  F.  C.  M.,  at  ,  in  the 

state  of ,  where  he  then  resided,  and  so  passed  out  of 

their  control.     That  the  C.  mail  for  at  that  time  closed 

at  o'clock  P.  M.,  and  that  by  the  usual  course  of  the 

mail  said  certificate  was  received  at ,  the  home  of  the  said 

F.  C.  M.,  on  the  morning  of  the day  of ,  18 — .    That 

on  the  morning  of  the day  of ,  18 — ,  they  received 

said  certificate  from  the  Peninsular  Bank,  located  at ,  for 

payment;  and  that  when  so  presented  for  payment  it  had 
been,  and  was,  properly  indorsed  to  said  bank,  and  as  they 
believe  in  the  usual  course  of  business,  in  good  faith,  and  for 
good  consideration ;  and  that  said  bank  was  and  is  the  abso- 
lute owner  and  holder  of  the  same ;  and  that  the  respondents 
are  legally  liable  to  pay  the  amount  thereof  to  said  bank  ac- 
cording to  its  tenor.  They  deny  having  in  their  possession 
or  within  their  control  any  monej',  choses  in  action  or  prop- 
erty of  F.  C.  M.,  and  that  the  plaintiff  is  not  entitled  to 

1  Straub  v.  Mull  &,  Fanger,  5  W.  L.  B.  441  (Ham.  D.  C,  1880). 


§§  261,  202.]  ATTACHMENT.  243 

subject  the  amount  for  which  said  certificate  was  issued  to 
process  of  attachment,  and  ask  that  the  same  be  dismissed  as 
to  this  respondent,  and  for  costs. 

Sec.  261.  Several  attach inents  upon  the  same  property. 
Different  attachments  may  be  made  by  the  same  officer  upon 
the  same  property,  and  in  such  cases  only  one  inventory  need 
be  made ;  ^  but  personal  property  held  under  an  attachment 
by  one  officer  cannot  be  levied  upon  under  a  writ  in  the  hands 
of  another  officer,  even  with  the  consent  of  the  latter.^  When 
a  subsequent  attachment  is  made  on  real  property  under  sub- 
sequent orders,  it  should  be  made  as  in  other  cases  ;^  and  if 
the  process  be  against  personal  property  it  shall  be  attached 
as  in  the  hands  of  the  officer,  and  subject  to  any  previous  at- 
tachment, and  if  the  property  is  in  the  hands  of  a  garnishee 
which  has  been  attached  before,  a  copy  of  the  order  shall  be 
left  with  him  as  m  other  cases.*  When  several  attachments 
are  executed  on  the  same  property,  or  the  same  person  is 
made  a  garnishee  by  several  parties,  the  court  may,  on  motion 
of  any  one  of  the  plaintiffs,  order  a  reference  to  ascertain  and 
report  the  amounts  and  priorities  of  the  several  attachments.^ 
A  subsequent  attaching  creditor  cannot  properly  be  made  a 
party  on  the  ground  of  an  interest  acquired  by  the  levy,  yet 
he  may  come  in  by  motion  and  be  heard  as  to  any  question 
of  priority  of  liens,  in  the  satisfaction  of  their  respective  judg- 
ments, and  in  the  distribution  of  the  fund  in  the  hands  of  the 
officer."  A  suit  may  be  maintained  by  an  attaching  creditor 
of  personal  property  which  is  in  the  hands  of  a  sheriff  for  the 
purpose  of  removing  clouds  upon  it  by  mortgage  or  otherwise 
which  will  affect  its  sale,  but  the  same  cannot  be  prosecuted 
before  the  liability  of  the  defendant  in  the  attachment  pro- 
i.eedings  has  been  determined  by  judgment." 

Sec.  262.  Receiver  for  property  attached.— A  receiver  may 
l;e  appointed  by  the  court  either  in  vacation  or  during  term 

'  R.  S.,  sec.  5535 ;  Bailey  v.  Childs,  e  Harrison   v.  King,  9  O.  S.   388 ; 

46  O.  S.  557.  Ward  v.  Howard.  12  O.  S.  158;  Put- 

2  Bailey  V.  Childs,  sifpra,  man   t.    Loeb.   2  O.    C.    C.  110-114. 

3R  S.,  sec.  5528.  See,  also,  Leibman  v.  Ashbacher,  36 

•»  R  S.,  sees.  5530-5536.     As  to  offi-  O.  S.  94  :  Norton  t.  Norton,  43  O.  S. 

cer"s  return   in   such  cases,  see  sec.  509. 

•'»">37.  'VosR  V.  Murray,  29  W.  L.  B.  88, 

5R  S.,  sec.  5559.  S.  C,  50  O.  S.  19;  Sherman  v.  Fitch, 


244  ATTACHMENT.  [§  263. 

time  to  take  charge  of  the  property  attached  upon  good  cause 
being  shown ;  and  the  receiver  shall  give  a  bond  as  is  provided 
in  other  cases.'  It  shall  be  the  duty  of  the  receiver  to  take 
possession  of  all  notes  and  other  evidences  of  debt  which  have 
been  seized  by  the  sheriff  or  other  officer  as  the  property  of 
the  defendant  in  attachment  and  proceed  to  settle  and  collect 
the  same,  and  to  commence  and  maintain  actions  in  his  own 
name  for  that  purpose;  but  in  such  actions  no  right  of  defense 
shall  be  impaired  or  affected.'-  Such  receiver  may  also  take 
possession  of  evidences  of  indebtedness  which  may  be  taken 
under  an  order  of  attachment  sent  to  another  county,  and 
proceed  to  collect  them  as  in  other  cases.^  Notice  shall  be 
given  of  his  appointment  to  the  person  indebted  to  the  de- 
fendant in  attachment,  either  by  written  or  printed  notice 
served  personally  upon  the  debtor,  or  by  copy  left  at  his  resi- 
dence, and  the  debtor  shall  stand  liable  to  the  plaintiff  in  at- 
tachment for  the  amount  of  money  and  credits  of  the  defendant 
in  attachment  in  his  hands  from  the  date  of  service,  and 
shall  account  therefor  to  the  receiver.*  The  receiver  shall  re- 
port his  proceedings  and  hold  all  money  collected  by  him  and 
any  property  which  may  come  into  his  hands  subject  to  the 
order  of  the  court.^  "When  a  receiver  is  not  appointed  the 
officer  who  attaches  the  property  shall  have  all  the  powers, 
and  perform  all  the  duties,  of  a  receiver  appointed  by  the  court, 
and  may,  if  necessary,  commence  and  maintain  actions  in  his 
own  name  as  such  officer;  and  he  may  be  required  to  give 
security  other  than  his  official  undertaking.^ 

Sec.  26;i.  Discharge  of  attachment. —  A  defendant  may 
have  an  attachment  discharged  in  three  ways :  by  executing 
a  bond  for  restitution  of  the  property,^  by  making  a  motion 
for  that  purpose,^  or  by  a  judgment  rendered  in  his  favor.*^ 
The  giving  of  a  bond  by  the  defendant  will  also  discharge  a 
garnishee  for  any  property  which  may  be  found  in  his  hands;'" 
but  the  defendant  cannot  ask  the  discharge  on  the  ground 

98  Mass.  59;  Joues  on  Chattel  Mort-        ^R.  S.,  sec.  5542. 

gages,  sec.  348.  ''  R.  S.,  sec.  5543. 

1  R  S.,  sec.  5539.  '  R.  S.,  sec.  5545. 

2R   S.,  sec.   5540;   Woodburne  v.        a  r.  s.,  sec.  5556. 

Scarborough,  20  O.  S.  57.  » R  S.,  sec.  5554. 

3  Finuel  v.  Burt.  2  Handy,  204.  w  R.  s.,  sec  5545. 

•*  R  S.,  sec.  5541. 


Jl 


§  263.]  ATTACHMENT.  246 

that  the  answer  of  the  garnishee  fails  to  show  any  property 
in  his  hands.^ 

The  undertaking  may  be  executed  during  vacation  and  in 
the  presence  of  the  officer,  while  the  writ  is  in  his  hands,  or 
before  the  clerk  after  the  return  of  the  order,  the  same  to  be 
approved  in  either  case  by  the  oUicer  before  whom  it  is  taken.^ 
If  there  be  no  ground  for  attachment,  the  fact  that  the  de- 
fendant has  given  a  bond  will  not  operate  to  estop  him  from 
movincj  to  discharo^e  the  attachment.^ 

A  motion  to  discharge  an  attachment  may  be  as  to  the 
whole  or  to  a  part  of  the  property,  and  may  be  heard  by  the 
court  in  vacation  as  well  as  durinor  the  regular  session.*  This 
right  should  be  limited  to  cases  where  the  defendant  shows 
an  interest  in  the  motion,  although  where  the  ground  is  that 
the  attachment  is  wrongfully  obtained  no  question  as  to  the 
interest  of  the  defendant  in  the  property  attached  will  pre- 
vent an  inquiry  into  the  grounds  thereof.'  Such  a  motion 
may  be  made  upon  the  ground  that  the  affidavit  is  insuffi- 
cient,**  in  which  case  the  court  will  not  look  into  the  petitions 
and  exhibits,^  or  into  the  question  whether  the  property  wa& 
fraudulently  brought  into  the  state  for  the  purpose  of  attach- 
ing it.*  A  motion  to  discharge  cannot  be  made  upon  the 
ground  that  the  property  does  not  belong  to  the  defendant  ;^ 
nor  will  an  attachment  be  discharged  on  the  ground  that  it 
appears  from  the  answer  of  the  garnishee  that  he  is  not  in- 
debted or  has  no  property  in  his  possession  belonging  to  the 
defendant;^"  but  where  an  answer  of  a  garnishee  shows  that 
there  was  nothing  due  from  him  to  the  plaintiff,  which  is  not 
objected  to  within  a  reasonable  time,  and  is  apparently  drawn 

•Myers  v.   Smith,    29    O.   S.   120;  ^ Kizer  v.  George,  19  W.  L.  B.  257; 

Penn.  R  R  Co.  v.  Peoples,  31  O.  S.  Timmons  v.  Garrison,  4  Humph.  148; 

5:^7;  anie.  sec.  258.  Powell   v.  McKee,   4  La.  Ann.  108; 

-  R  S.,  sec.  5546 ;  Hartwell  v.  Smith,  Deyo  v.  Jenison,  4  Allen,  410 ;  Drake 

15  O.  S.  200.  on  Attach.,  sees.  193-289 ;  1  Wade  on 

3  Eagan  v.  Lumsden,  2  Disn.  168 ;  Attach.  130 ;  Waples  on  Attach.  180. 

Williams  v.  Shipwith,  4  Ark.  529.  »  Langdon  v.  Conklin,  10  O.  S.  430  : 

*  R  S.,  sec.  5562.     See  10  O.  a  439.  Emerson  t.  Love,  2  W.  L.  B.  480. 

*Bank  v.  Nash,  1  Handy,  153.  icPenn.  R  R  Co.  v.  Peoples,  siqjia; 

6  Constable  v.  White,  1  Handy,  45.  ante,  sec.  258. 

7  Gann  v.  White,  23  O.  S.  192. 


246  ATTACHMENT.  [§§  264,  265. 

with  the  concurrence  of  the  plaintiff,  a  motion  to  discbarge 
the  garnishee  will  be  granted.* 

Motions  to  discharge  attachments  may  be  heard  upon  affi- 
davits or  papers  and  evidence  in  the  case,  and  opposed  by  the 
plaintiff  in  the  same  manner;-  and  the  same  should  be  filed 
so  as  to  give  the  opposite  party  sufficient  time  to  inspect  the 
same  before  the  hearing.'  The  court  must  consider  the  whole 
evidence,  and,  no  matter  how  poorly  the  cause  or  grounds  are 
set  out,  sustain  the  attachment  if  sufficient  evidence  appear.* 
The  questions,  however,  to  be  considered  are  not  the  nature 
or  justice  of  the  claim,  but  does  the  evidence  entitle  the 
plaintiff  to  the  process.^  xln  order  discharging  an  attachment 
is  not  such  as  will  prevent  the  issuance  of  a  subsequent  attach- 
ment.^ 

Sec.  264.  Judgment  for  plaintiff  and  proceedings  there- 
under.—  When  judgment  is  rendered  for  the  plaintiff  it  is 
satisfied  in  the  same  manner  and  under  the  same  restrictions 
and  regulations  as  if  the  property  were  levied  on  by  execution ;  ^ 
and  the  court  may  compel  delivery  of  any  attached  property 
for  which  an  undertaking  has  been  given,  or  proceed  sum- 
marily on  such  undertaking  by  rules  of  attachment  as  in  con- 
tempt,^ or  order  an  officer  to  repossess  himself  of  the  attached 
property  for  the  purpose  of  selling  it,  and  in  such  cases  may 
take  the  property  as  under  an  order  of  attachment.'  If  prop- 
erty attached  be  claimed  by  any  person  other  than  the  de- 
fendant, an  officer  may  have  the  validity  of  such  claim  tried 
in  the  same  manner  as  if  it  had  been  seized  upon  execution 
and  claimed  by  a  third  person.^" 

Sec.  265.  Proceedings  not  terminated  by  death  of  defend- 
ant.—  The  proceedings  shall  be  carried  on  even  though  the 
defendant,  being  a  person,  die  after  the  issue  of  the  order,  or, 
being  a  corporation,  its  charter  expire  or  be  forfeited ;  in  all 
such  cases  other  than  where  the  defendant  was  a  foreign  cor- 

1  Buchanan  v.  Mitchell,  8  W.  L.  5  Alexander  v.  Brown,  2  Disn.  395. 
B.  8.  «  Brooks  v.  Todd,  1  Handy,  169-76. 

2  R   S.,   sec.   5563 ;    Alexander    v.  "  R,  S.,  sec.  5555. 
Brown,  2  Disn.  395.  8  R.  s.,  sec.  5556. 

3  Coaston  v.  Paige,  9  O.  S.  397-9.  »  R.  S.,  sec.  5557. 
*  Sellew  V.  Chrisfteld,  1  Handy,  86,       I'J  R  S.,  sec.  5558. 

90. 


I 


§§  266,  267.]  ATTACHMENT.  24:7 

poration,  the  legal  representatives  of  the  defendant  shall  be 
made  parties  to  the  actioYi.' 

Sec.  tJGG.  Error  from  attachment  proceedings. —  An  order 
discharging  an  attachment  upon  a  motion  therefor  is  an  order 
affecting  a  substantial  right,  although  made  in  a  special  pro- 
ceeding called  a  provisional  remedy,  upon  which  proceedings 
in  error  may  be  predicated  and  the  order  reversed  pending 
the  action  in  which  the  order  of  attachment  is  made.^  In 
reversing  an  inferior  court  on  a  question  of  fact  involved  in 
the  motion  to  discharge,  a  court  of  error  should  be  clearly 
satisfied  that  it  was  error ;  ^  but  it  is  not  necessary  that  a  mo- 
tion  for  a  new  trial  shall  have  been  made  in  order  that  a 
review  may  be  had  of  a  judgment  granting  a  motion  to  dis- 
charge an  attachment.*  A  reversal  may  be  had  where  a 
motion  was  made  on  the  ground  that  the  affidavit  was  insuffi- 
cient;* but  an  order  of  a  justice  of  the  peace  cannot  be  re- 
viewed on  the  ground  that  it  was  against  the  weight  of  evi- 
dence,^ but  may  for  other  errors; '  and  for  that  purpose  a  bill 
of  exceptions  may  be  taken  embodying  all  of  the  evidence 
upon  the  hearing  of  the  motion  together  with  the  rulings  of 
the  justice.^ 

Sec.  267.  Motion  to  sell  perishable  property,  or  because 
of  expense  of  keeping. — 

[Caption.'] 

The  plaintiff  represents  to  the  court  that  upon  the  w^-it  of 
attachment  issued  herein  there  was  levied  upon,  with  other 
l)roperty,  the  following  described  personal  property,  to  wit: 
{describe  it\  of  the  value  of dollars. 

That  said  property  is  of  perishable  nature,  and  will  soon 
decay  and  rot,  so  as  to  greatly,  if  not  wholly,  lose  its  market 
value,  to  the  loss  of  both  the  plaintiff  and  the  defendant. 

\_0r,  That  the  keeping  of  said  property  is  expensive,  costing 

now  about  dollars  per  day  {or,  week),  and  to  keep   it 

until  this  cause  is  determined  will  inflict  a  loss  upon  both  the 
plaintiff  and  the  defendant.] 

Wherefore  he  moves  that  the  court  will  order  the  sheriff  of 
county,  to  whom  said  writ  was  issued,  and  who  made 

1  R.  S.,  sec.  5560.  <  Burtraan  v.  McKenzie,  13  W.   L. 

2  Watson  V.   Sullivan,   5   O.   S.   43    B.  321. 

(1855).    Contra,  Sutliff  v.  Bank,  1  W.  SGanns  v.  Thompson,  11  O.  S.  579. 

K  M.  214.  6  Baer  v.  Otto,  34  O.  S.  11. 

■J  Harrison  V.  King,   9  O.   S.    388;  7  Young  v.  Gerdes,  42  O.  S.  102. 

Saxton  V.  Plyuiire,  3  O.  C.  C.  209.  8  Seville  v.  Wagoner,  46  O.  S.  52. 


248  ATTACHMENT.  [§  268. 

said  levy,  and  who  still  has  possession  of  said  property,  to  sell 
the  same  at  public  auction,  upon  reasonable  notice  first  given^ 
either  for  cash  or  upon  such  terras  of  credit  as  the  court  may 
deem  proper. 

[Of',  Wherefore  plaintiff,  for  good  cause  shown,  moves  the 
court  for  an  order  of  sale  of  the  aforesaid  property  at  private 
sale.] 

Note. —  Sec.  5554.  This  motion  may  be  made  during  pendency  of  pro- 
ceedings in  error  to  the  court  in  which  the  action  was  brought  and  the 
property  attached.  It  is  collateral  to  and  independent  of  the  merits  of  the 
suit,  and  not  within  the  jurisdiction  of  the  reviewing  court.  Brundred  v. 
Rice,  21  W.  L.  B.  413. 

See.  268.  Answer  of  defendant. — 

[  Captioti.'] 

Defendant  says  that  he  denies  each  and  every  allegation 
contained  in  the  complaint  and  each  and  every  allegation  con- 
tained in  the  affidavit  filed  herein  for  a  writ  of  attachment. 

[0/\  That  he  denies  each  and  every  allegation  of  the  affi- 
davit filed  herein  for  a  writ  of  attachment.] 


CHAPTER  19. 

ATTORNEYS  AT  LAW. 


Sec.  269.  Petition     against    attorney 
for  negligently  conduct- 
ing a  trial. 
270.  Petition  for  negligently  de- 
fending an  action. 


Sec.  371.  Petition  against  attorney 
for  negligently  investi- 
gating title  for  the  pur- 
pose of  a  loan. 
873.  Petition  against  attorney 
for  negligence  in  examin- 
ing title  for  purchase. 


Sec.  269.  Petition  against  attorney  for  negligently  con- 
ducting a  trial. — 

That  before  and  at  the  time  of  the  committing  of  the  griev- 
ances by  the  said  defendant  as  hereinafter  mentioned,  the 
said  plaintiff,  at  the  special  instance  and  request  of  the  said 
defendant,  had  retained  and  employed  the  said  defendant  as 
an  attorney  to  prosecute  and  conduct  a  certain  action  for  the 
conversion  of  personal  property  in  the  said  court,  by  and  at 
the  suit  of  the  said  plaintiff,  against  one  E.  F.,  for  taking 
away  and  converting  to  his  use  certain  goods  and  chattels, 
claimed  by  him,  for  certain  reasonable  fees  and  reward,  to 
be  therefor  paid  by  said  plaintiff  to  said  defendant;  and 
the  said  defendant  then  and  there  accepted  and  entered  upon 

such  retainer  and  employment,  to  wit,  at ,  and  thereupon 

it  then  and  there  became  and  was  the  duty  of  the  said  de- 
fendant to  prosecute  and  conduct  the  said  action  in  a  proper, 
skilful  and  diligent  manner. 

That  the  said  defendant,  not  regarding  such  his  duty  or  re- 
tainer and  employment  [and  intending ^o  injure  and  aggrieve 
the  said  plaintiff']  in  this  behalf,  did  not  prosecute  or  con- 
duct the  said  action  in  a  proper,  skilful  or  diligent  manner, 
and,  on  the  contrary  thereof,  prosecuted  and  conducted  the 
same  action  to  trial  so  improperly,  unskilfully  and  negli- 
gently [state  particular  negligence]  that  the  said  plaintiff,  by 
the  neglect  and  default  of  the  said  defendant  in  that  behalf, 
was  hindered  and  prevented  from  [state  result  of  negligence 
and  injury  caused],  and  by  reason  thereof  was  afterwards, 
to  wit,  on,  etc.  [day  of  nonsuit  or  about  it],  at,  etc.,  compelled 
to  suffer  himself,  the  said  plaintiff,  to  be  nonsuited  in  the  said 
action,  whereby  he,  the  said  plaintiff,  was  not  only  hindered 


250  ATTORNEYS    AT    LAW.  [§  270. 

and  prevented  from  recovering  his  said  damages  from  the 
said  E.  F.  by  reason  of  his  taking  away  and  converting  the 
said  goods  and  chattels  as  aforesaid,  but  has  also  been  forced 
and  obliged  to  pay  and  has  paid  to  the  said  E.  F.  a  large  sum 

of  money,  to  wit,  the  sum  of  dollars,  for  his  costs  and 

charges  in  and  about  the  defense  of  the  said  action,  and  has 
also   paid  to   said   defendant  another  large  sum  of  money, 

to  wit,  the  sum  of dollars,  for  his  costs  and  charges  for 

thejirosecution  and  conduct  of  the  said  action. 
Wherefore,  etc.  \_prayer  for  judgment]. 

Note. —  An  attornpy  is  not  liable  where  the  negligence  complained  of 
does  not  work  any  injury.  Harter  v.  Morris.  18  O.  S.  492.  As  to  liability 
for  negligence  in  conduct  of  cases,  see  Weeks  on  Att'ys,  sec.  297. 

Sec.  270.  Petition  for  negligently  defending  an  action 

\_Caption.] 

At  the  time  of  the  making  of  the  promise  and  undertaking 
of  said  defendant,  hereinafter  mentioned,  a  certain  action  had 
been  commenced  and  prosecuted  and  was  then  depending  by 
and  at  the  suit  of  one  J.  K.  against  the  said  plaintiff,  in  the 

court  of  ,  for  the  recovery  of dollars  claimed 

to  be  due  and  owing  to  said  J.  K.  from  said  plaintiff  upon  a 
promissory  note  executed  by  the  plaintiff  to  said  J.  K.  on  the 

day  of  ,  18 — ,  for dollars,  and  thereupon  he 

employed  and  retained  the  said  defendant,  he  being  then  an 
attorney  [of  the  said  court],  as  such  attorney  to  defend  the 
said  action  for  the  said  plaintiff,  and  in  consideration  of  such 
'employment  the  said  defendant  undertook  and  then  and  there 
faithfully  promised  the  said  plaintiff  to  defend  the  said  action 
for  him,  the  said  plaintiff,  in  a  proper  and  careful  manner. 
Plaintiff  informed  the  defendant  that  he  had  fully  paid  said 
note  before  suit  was  brought  thereon,  and  although  such  pro- 
ceedings were  thereupon  had  in  the  said  action  that  after- 
wards, to  wit,  on  the day  of ,  18 — ,  it  became  and 

was  the  duty  of  the  said  defendant,  under  and  by  virtue  of 
his  said  retainer  and  his  said  promise  and  undertaking,  to  file 
a  proper  and  sufficient  answer  to  the  petition  therein,  never- 
theless the  said  defendant,  not  regarding  his  said  promise  and 
undertaking  [but  contriving  to  injure  the  said  })laintiff'  in  this 
behalf],  did  not  nor  would,  when  it  was  his  duty  so  to  do  as 
aforesaid,  file  a  proper  or  sufficient  answer  to  the  said  peti- 
tion, but,  on  the  contrary  thereof,  wholly  omitted  and  neg- 
lected so  to  do,  and  by  reason  thereof,  and  by  and  through 
the  default  and  neglect  of  the  said  defendant  in  that  behalf, 

afterwards,  to  wit,  on  the  day  of ,  18 — ,  judgment 

by  default  was  obtained  in  the  said  action  against  him,  the 
said  plaintiff,  by  which  it  was  adjudged,  in  and  by  the  said 
court,  in  the  said  action,  that  the  said  J.  K.  should  recover 
against  the  said  plaintiff  a  large  sum  of  money,  to  wit,  the 


§  271.]  ATTOENEYS    AT    LAW.  251 

sum  of dollars;  and  the  said  plaintiff  was  afterwards,  to 

wit,  on  the day  of  -^ — ,  18 — ,  forced  and  obliged  to  pay, 

and  did  pay,  to  the  said  J.  K.  the  said  sum  of  money  so  re- 
covered by  him  as  aforesaid ;  and  also  by  means  of  the  prem- 
ises he,  the  said  plaintiff,  was  put  to  divers  costs  and  charges 
in  and  about  his  endeavoring  to  defend  the  said  action,  amount- 
ing in  the  whole  to  a  large  sum  of  money,  to  wit, dollars, 

and  has  lost  and  been  deprived  of  the  means  of  recovering 
the  same  from  the  said  J.  K. 
Wherefore,  etc. 

Note. —  The  judgment  cannot  be  enjoined  because  the  attorney  neglects 
to  defend  a  suit,  but  the  remedy  is  against  the  attorney  for  damages.  Bar- 
horst  V.  Armstrong,  43  Fed.  Rep.  2. 

Sec.  271.  Petition  agaiust  attorney  for  negligence  in  in- 
vestigating title  for  the  purpose  of  a  loan. — 

[  Caption.'] 

That  heretofore,  and  on  or  about  the  day  of  , 

18 — ,  one  H.  C.  was  desirous  of  obtaining  from  the  said  plaint- 
iff a  loan  of dollars,  upon  interest,  at  and  after  the  rate 

of  six  per  cent,  per  annum,  and  as  a  security  for  the  repay- 
ment therefor,  and  interest  thereupon  as  aforesaid,  to  the  said 
plaintiff,  proposed  to  incumber  certain  lands,  tenements  and 
premises  situated  in  the  county  of and  state  of . 

That  the  plaintiff  thereupon,  to  wit,  on  the  day  and  year 
aforesaid,  employed  and  retained  the  said  defendant  as  an  attor- 
ney, for  fees  and  reward  to  him  in  that  behalf,  to  ascertain  the 
title  of  the  said  H.  C.  to  the  said  lands  and  premises,  and  to 
take  due  and  proper  care  that  the  same  should  be  a  sufficient 
security  for  the  repayment  of  the  said  sum  of  money  and  in- 
terest, and  the  said  defendant  accepted  and  entered  upon  such 
retainer  and  em])loyment. 

That  the  said  defendant,  not  regarding  his  duty  or  his  said 
retainer  and  em[)loyment  [but  contriving  and  intending  to  in- 
jure and  aggrieve  the  plaintiff  in  this  behalf],  did  not  take 
due  and  proper  care  to  ascertain  the  title  of  the  said  II.  C. 
to  the  said  lands,  tenements  and  premises,  nor  take  due  and 
proper  care  that  the  same  should  be  a  sufficient  security  for 
the  repayment  of  the  said  sum  and  interest. 

And  the  said  plaintiff  further  says  that  he,  confiding  in  the 
said  performance  of  the  said  duty  of  the  said  defendant,  and 
relying  upon  the  statement  and  assurance  of  the  said  defend- 
ant theretofore  made  to  this  plaintiff  to  the  effect  that  the 
said  H,  C.  had  a  valid  title  in  fee-simple  to  and  in  said  j)rem- 

ises,  afterward,  to  wit,  on  the day  of ,  IS — ,  did  lend 

and  advance  to  the  said  H.  C.  the  sum  of  dollars,  upon 

the  security  of  certain  lands,  tenements  and  premises  in  the 

county  of aforesaid,  as  and  for  a  sufficient  security  in 

that  behalf;  and  the  said  defendant,  in  pursuance  of  his  said 


252  ATTORNEYS    AT    LAW.  [§  272. 

retainer,  caused  to  be  prepared  and  executed  a  certain  mort- 
gage and  certain  securities  relating  to  the  said  supposed  in- 
terest of  the  said  H.  C.  in  the  said  last-mentioned  lands,  tene- 
ments and  premises,  as  and  for  such  sufficient  security  for  the 

repayment  of  the  said  sum  of  dollars,  and  interest  as 

aforesaid,  the  same  being  then  and  there,  by  reason  of  the 
said  defendant's  negligence,  carelessness,  unskilfulness  and 
improper  conduct  in  the  premises,  a  bad  and  insutficient  se- 
curity for  the  repayment  of  the  said  sum  of  dollars  and 

interest  as  aforesaid,  whereby  the  plaintiff  lost  the  amount  so 

loaned  to  the  said  H.  C,  to  his  damage  in  the  sum  of  

dollars,  for  Avhich,  etc.  [prayer  for  judgment]. 

Sec.  271a.  Petition  against  attorney  for  negligence  in 
examining  title  for  pnrchase. — 

[Caption.'] 

That  at  a  time  hereinafter  mentioned  the  plaintiff  entered 
into  a  contract  with  one  L.  M.  for  the  purchase  from  him  of 
certain  real  property  [describing  the  premises]  for  the  sum  of 

dollars,  which  property  said  L.  M.  assumed  to  have  power 

to  convey  in  fee,  and  clear  of  all  incumbrances. 

That  the  defendant  was  an  attorney  and  was  employed  by 

the  plaintiff  as  such  at ,  in  the  month  of  ,  18 — ,  to 

examine  the  title  of  L.  M.  to  said  property,  and  to  ascertain  if 
the  title  was  good  and  if  any  incumbrances  existed  thereon, 
and  to  cause  and  procure  an  estate  therein  in  fee-simple  and 
clear  of  all  incumbrances  to  be  conveyed  to  the  plaintiff, 
which  the  defendant  for  compensation  agreed  to  do. 

That  the  defendant  negligently  and  unskilfully  conducted 
such  examination,  and  did  not  use  endeavors  to  cause  or  jiro- 
cure  a  good  and  sufficient  title  in  fee,  clear  of  mcumbrances, 
to  be  conveyed  to  the  plaintiff,  but  wrongfully  advised  and  in- 
duced the  plaintiff  to  pay  said  L.  M.  the  sum  of  dollars, 

being  said  purchase-money  of  the  premises,  when  in  fact  said 
L.  M.  had  no  title  thereto  [o/',  wheyi  said  property  was  subject 
to  inc-umbrances^  specifying  thepi  and  amount^  and  the  plaintiff, 
in  order  to  release  the  premises  from  said  incumbrances,  was 

obliged  to  pay  the  holders  thereof  the  sum  of dollars],  to 

the  damage  of  the  plaintiff dollars. 

Note.— As  to  liability  for  attorney  for  negligence  in  examining  title,  see 
Weeks  on  Att'ys,  sees.  304,  312. 


CHAPTER  20. 


BAILMENTS. 


Sec.  272.  General  form  of  petition 
against  bailee  for  negli- 
gence. 
873.  Petition  for  damages 
against  bailee  for  negli- 
gence in  special  case. 

274.  Petition      for      damages 

against  hirer  of  horse 
and  buggy  for  careless- 
ness. 

275.  Petition  for  damages  aris- 

ing from  driving  horse 
to  different  place  tlian 
that  agreed  upon. 


Sec.  276.     Duties   and    liabilities    of 
pleiigee. 

277.  Petition  for  damages    for 

loss  of  pledge. 

278.  Petition  to  foreclose  and 

sell  pledge. 

279.  Answer  of  loss  by  fire. 

280.  Pledge  of  commercial  pa- 

per. 
280tJ.  Petition  by  pledgor  of  ne- 
•    gotiable    paper    against 
pledgee. 


Sec.  272.  General  form  of  petition  against  bailee  for 
negligence. — 

\_Ca2)tion.'] 

That  the  said  plaintiff  heretofore,  and  on  or  about  the 

day  of ,  18 — ,  at ,  at  the  special  instance  and  request 

■of  the  said  defendant,  caused  to  be  delivered  to  him.  the  said 
defendant,  a  certain  [name  ^yr ope Hy\  belonging  to  said  plaintiff, 

•of  the  value  of dollars,  to  be  taken  care  of  and  safely  and 

securely  kept  by  the  said  defendant  for  the  said  plaintiff.  Said 
defendant  thereupon  undertook  and  agreed  with  the  said 
plaintiff  to  take  due  and  proper  care  of  the  said  \_property 
named]  for  said  plaintiff,  and  to  deliver  the  same  to  him,  the 
said  plaintiff,  to  wit,  at :  yet  the  said  defendant,  not  re- 
garding his  duty  in  that  behalf,  did  not,  nor  would,  take  due 
and  proper  care  of  the  said  [propertij]  for  the  said  plaintiff; 
nor  did  he  when  requested  as  aforesaid,  or  at  any  time  before 
•or  afterwards,  redeliver  the  same  to  the  said  plaintiff:  but,  on 
the  contrary,  said  defendant  so  carelessly  behaved  and  con- 
ducted himself  with  respect  to  the  said  [property\  and  took  so 
little  and  such  bad  care  thereof,  that  by  and  through  the  care- 
lessness, negligence  and  improper  conduct  of  the  said  defend- 
ant the  said  Iprojyerty']  became  and  was  wholly  lost  to  the 
said  plaintiff,  to  the  damage  of  the  plaintiff  of  — —  dollars. 

General  Note. —  A  bailee  without  reward  is  liable  only  for  losses  arising 
from  gross  negligence,  ami  hence  whether  a  banking  house  has  been  guilty 


254  BAILMENTS.  [§§  273,  274. 

of  negligence  when  bonds  hare  been  deposited  with  it  as  a  gratuitous  bailee 
must  be  determined  by  the  jury ;  he  should  keep  tiie  goods  intrusted  to  him 
as  he  wou'd  ordinarily  keep  goods  of  his  own  of  the  same  kind.  Griffith  v. 
Zippenwick.  28  O.  S.  388.  A  bailee  who  as  a  guest  has  intrusted  a  trust 
fund  in  his  pc  ssession  with  a  hotel  may  maintain  an  action  in  his  own  name 
for  the  recovery  of  the  same  when  lost  while  in  the  custody  of  such  hotel. 
Arcade  Hotel  Co.  v.  Wiatt,  1  O.  C.  C.  55.  A  bank  receiving  special  deposits 
gratuitously  is  liable  for  any  loss  thereof  occurrini;;  througli  the  want  of 
that  degree  of  care  which  good  business  men  would  exercise  in  keeping 
property  of  such  value.  Bank  v.  Zent.  39  O.  S.  105.  A  bailor  has  a  remedy 
against  a  person  who  has  converted  his  property  to  his  own  use.  Thorne  v. 
Bank.  37  O.  S.  260;  Roland  v.  Gundy.  5  O.  20:>:  Knapp  v.  Hobbs,  50  N.  H. 
476.  But  where  a  bailee  sells  property  of  a  bailor  in  violation  of  his  trust,  and 
applies  the  proceeds  in  paj-ment  of  the  formers  debts  to  a  third  person 
ignorant  of  the  breach  of  trust,  the  latter  cannot  maintain  an  action  for 
money  had  and  received  against  such  third  person.  Thorne  v.  Bank,  37  O.  S. 
260,  2iil :  Kingsley  v.  Plimpton,  17  Pick.  159 ;  Thatcher  v.  Pray,  113  Mass.  291 ; 
Culver  V.  Bigeiow,  43  Vt.  249. 

Sec.  273.  Petition  for  damages  against  bailee  for  negli- 
gence in  special  case. — 

That  on  the day  of .  18 — ,  the  defendant,  being  a 

[desc/'ibe  trade],  and  carrying  on  that  trade,  the  plaintiff,  at 
the  defendant's  request,  delivered  to  defendant  [describe prop- 
erty]^ the  property  of  plaintiff,  of  the  value  of  % ,  to  be 

repaired  by  said  defendant  in  the  way  of  his  trade,  for  a  rea- 
sonable reward  to  be  paid  by  the  plaintiff. 

That  the  defendant  thereupon  promised  the  plaintiff  to  re- 
pair said in  a  skilful  and  workmanlike  manner,  and  to 

take  due  and  proper  care  thereof  until  the  same  should  be 
returned  by  the  defendant  to  the  plaintiff. 

That  the  said  defendant  did  not  repair  said in  a  good 

and  workmanlike  manner,  and  neglected  to  take  proper  care 

of  said ,  whereby  said  property  was  greatly  injured,  and 

the  value  of  the  same  diminished  in  the  sum  of  % ,  to  the 

damage  of  plaintiff  in  the  sum  of  % . 

{Prayer:] 

Sec,  274.  Petition  for  damages  against  hirer  of  horse 
and  buggy  for  carelessness. — 

[Caption:^ 

That  on  the day  of ,  18 — ,  for  a  valuable  consider- 
ation, the  plaintiff,  at  defendant's  request,  let  to  defendant  a 

certain  horse,  the  property  of  plamtitf,  of  the  value  of  % y 

for  the  purpose  of  going  from to ,  and  return. 

It  thereby  became  the  duty  of  defendant,  and  he  promised 
at  the  time  of  hiring  said  horse,  to  take  proper  care  thereof^ 
which  was  the  condition  upon  which  said  defendant  received 
said  horse. 

Defendant  failed  and  neglected  to  use  said  horse  in  a  care- 
ful, prudent  manner,  but,  on  the  contrary,  rode  \pr,  drove] 
the  same  immoderately  upon  said  journey,  and  failed  and 
neglected  properly  to  care  for  the  same,  whereby  said  horse- 


§§  275,  276.]  BAILMENTS.  255 

[state  the  injury'],  to  the  damage  of  plaintiff  in  the  sum  of 

5* . 

[Prat/er.'] 

Note.—  Liability  for  OTerdriving,  see  Bonfield  v.  "Whipple.  10  Allen,  27; 
Edwards  v.  Carr.  13  Gray,  234 ;  Ray  v.  Tubbs,  50  Vt  688 ;  Rowland  v.  Jones, 
73  N.  C.  52 :  for  overloading,  NcNeil  v.  Brooks.  1  Yerg.  73 ;  Harrington  v. 
Snyder,  3  Barb.  380 ;  for  careless  hitching.  Jackson  v.  Robinson,  18  B.  Mon.  1 ; 
for  carelessness  in  feeding.  Handford  t.  Palmer,  2  B.  &  B.  359 ;  Eastman  v. 
Sanborn,  3  Allen,  594 :  Cross  v.  Brown,  41  N.  H.  283. 

Sec.  275.  Petition  for  damages  arising  from  driving 
horse  to  a  different  place  from  that  agreed  upon. — 

[Captio7i  and  cjjening'j 

That  on  the day  of ,  18 — ,  the  defendant  hired 

from  the  plaintiff  a  horse  and  wagon,  the  property  of  the 

plaintiff,  of  the  value  of  | ,  for  the  purpose  of  driving 

from to . 

Defendant,  disregarding  his  said  agreement,  drove  said 
horse  and  wagon  to without  authority  from  plaintiff. 

Defendant  so  negligently  drove  and  fed  said  horse  that  the 
same,  by  reason  of  said  defendant's  negligence  and  violation 
of  his  said  contract,  became  sick  and  died. 

That  said  horse  was  reasonably  worth  the  sum  of  $ ,  and 

plaintiff  has  therefore,  by  reason  of  the  premises,  been  dam- 
aged in  the  sum  of  $ .  for  which  he  asks  judgment. 

Note. —  Liability  of  person  for  driving  horse  to  different  place.  Bucha- 
nan V.  Smith,  10  Hun,  474 :  Fisher  v.  Kyle.  27  Mich.  454 ;  Wentworth  v.  Mc- 
Duffe.  48  N.  H.  402 ;  Lane  v.  Cameron,  38  Wis.  603 ;  Ray  v.  Tubbs.  50  Vt 
688;  Lucas  v.  Trumbull,  15  Gray,  306.  If  infant  Homer  v.  Thwing,  3 
Pick.  492. 

Sec.  276.  Duties  and  liabilities  of  pledgee. —  It  is  the  duty 
of  a  pledgee  to  safely  keep  the  thing  hypothecated  that  it 
may  be  returned  when  the  pledgor  has  complied  with  all  the 
requirements  and  conditions  of  the  loan.^  So  where  property 
pledged  has  been  disposed  of  in  violation  of  the  contract,  or 
the  pledgee  refuses  to  deliver  the  same  to  the  pleilgor  upon 
the  latter's  compliance  with  all  conditions,  suit  may  be  main- 
tained against  the  pledgee  for  conversion.-  It  does  not  amount 
to  a  conversion  where  the  pledgee  has  sold  the  property  by 
virtue  of  the  power  given  him  for  that  purpose.^  The  pledgee 
is  requirpd  to  use  ordinary  care  with  respect  to  the  thing 

1  Dodge  V.  :Meyer,  61  Cal.  405:  Ro-  worth  v.  Bowen,  9  Wis.  848;  Dodge 

senzweig    v.    Frazer,   82    Ind.    342;  v.     Meyer,    siipra;    Rosenzweig     "v. 

Luckey  v.  Gannon,  1  Sweeney,  12.  Frazer,  supra, 

2Luckey  v.  Gannon,  supra;    Ains-        "  Cole  v.  Dalziel,  13  III  App.  23. 


256  BAILMENTS.  [§§  277,  278. 

pledged  and  is  liable  for  ordinary  negligence.^  And  if  the 
article  pledged  be  lost  the  pledgee  will  only  be  liable  when 
guilty  of  negligence.-  The  holder  of  stock  in  pledge  as  col- 
lateral for  its  owner's  debt  is  an  agent  for  the  latter,  or  coupled 
with  an  interest,  and  must  account  to  the  owner  for  all  sur- 
plus arising  upon  sale.' 

See.  277.  Petition  tor  damages  for  loss  of  pledge. — 

[Caption  and  opening.] 

On  the d.iy  of ,  18 — .  the  plaintiff  delivered  to  the 

defendant,  at  his  request,  the  following  goods :  [describe  goods'], 

the  property  of  the   plaintiff,  and  of  the   value  of  S ,  by 

way  of  pledge  to  said  defendant  for  the  sum  of  $ ,  then 

and  there  advanced  by  the  defendant  to  the  plaintiff  thereon. 

The  defendant  at  the  time  of  receiving  said  goods  agreed 
to  exercise  proper  care  for  the  same  until  plaintiff  was  able 
to  pay  the  amount  loaned  thereon,  and  redeem  the  same. 

Plaintiff  wholly  failed  and  neglected  to  take  proper  care 
of  said  goods,  by  reason  whereof  the  same  were  entirely' 
destroyed  and  ruined  and  lost  to  plaintiff. 

Plaintiff  tendered  to  the  defendant,  on  the day  of , 

18 — ,  the  sum  of  $ ,  the  sum  so  by  him  advanced  and 

loaned  upon  said  goods,  and  demanded  the  return  of  the  same, 
which  was  refused.  That  by  reason  of  the  non-delivery  of 
said  goods  by  the  defendant,  plaintiff  has  been  damaged  in  the 
sum  of  8 ,  etc. 

Sec.  278.  Petition  to  foreclose  and  sell  pledge. — 

[Captiofi.] 

Plaintiff  alleges  that  on  the  day  of ,   18 — ,  he 

loaned  to  the  defendant  the  sum  of  $ for months, 

with  interest  at  the  rate  of per  cent. 

At  the  time  of  making  said  loan,  and  in  order  to  secure  the 

payment  of  said  sum  of  S ,  defendant  delivered  to  plaintiff 

by  way  of  pledge  the  following  property :  [Describe  yroperty.] 
Said  property  was  received  by  ])laintiff  to  be  by  him  sold  in 
case  said  defendant  failed  to  repay  said  sum  so  loaned  to  him 
in  accordance  with  the  terms  of  said  loan,  and  the  proceeds 
thereof  applied  to  the  payment  of  said  loan. 

That  the  defendant  failed  and  neglected  to  pay  said  sum  of 

1  St.  Losky  V.  Daridson,  6  Cal.  643 ;  3  Lee  v.  Bank.  2  C.  S.  C.  R.  300.  As 
Arent  v.  .Squires.  1  Dalj-,  3-t7 ;  Baak  to  actiou  bj-  pledgee  of  stock  upon 
V.  Jackson,  67  Me.  570.        .  refusal  to  transfer  the  same  for  the 

2  Abbett  V.  Frederick,  56  How.  value  thereof,  see  Bank  v.  Bank,  37 
Pr.    68:   Van  Nostran    v.    Guaranty  O.  S.  208. 

Co.,  7  J.  &  S.  73;  Bank  v.  Zent.  30 
O.  S.  105. 


§,^  279,   280.]  BAILMENTS.  257 

$ at  the  time  the  same  became  due,  anrl  there  is  now  due 

plaintiff  from  defendant  thereon  the  sura  of  $ . 

Wherefore  plaintiff  asks  judgment  against  the  defendant 
for  the  sum  of  $ ,  and  that  the  said  property  so  as  afore- 
said pledged  may  be  sold  and  the  proceeds  thereof  applied  in 
payment  of  the  amount  so  found  due  plaintiff. 

Note. —  The  pledgee  has  the  ri2;ht  either  to  ohtain  a  decree  for  the  sale  of 
a  pledgee,  or  may  make  a  vaHd  sale  without.  Briggs  v.  OHver,  68  N.  Y.  336, 
Lucket  V.  Towuseud,  49  Am.  Dec.  723;  Robinson  v.  Hurly,  11  Iowa,  410; 
Boynton  v.  Payrovv,  67  Me.  587.  See,  also,  Stearns  v.  Marsli,  4  Denio,  227 ; 
Strong  V.  National  Bank  Association,  45  N.  Y.  718 ;  Conynham's  Appeal,  57 
Pa.  St.  474. 

Sec.  279.  Answer  of  loss  by  fire. — 

[Capiiofi.] 

Defendant  admits  that  he  received  from  the  plaintiff  the 
goods  described  in  the  petition,  to  be  kept  for  hira,  and  de- 
livered on  demand,  but  alleges  that  he  stored  them  in  his 

warehouse  at ^  and  kept  them  until  the day  of , 

18 — ,  when  said  warehouse,  with  its  contents,  including  the 
property  of  the  plaintiff,  without  the  fault  or  neglect  of  de- 
fendant, was  destroyed  by  lire. 

[Or,  That  plaintiff  has  not  at  any  time  demanded  said  prop- 
erty from  defendant.] 

[Prai/er.] 

See.  280.  Pledge  of  commercial  paper. —  A  different  rule 
prevails  as  to  commercial  paper  pledged  as  collateral  security.' 
Such  a  pledge,  in  the  absence  of  special  power  to  that  effect, 
does  not  authorize  the  pledgee  to  sell  the  same  either  at  public 
or  private  sale,  but  he  must  hold  and  collect  the  same  as  it 
becomes  due  and  apply  the  proceeds  to  the  payment  of  the 
debt.  This  exception  is  made  because  of  the  impracticability 
of  selling  commercial  paper.^  An  indorser  and  indorsee  of 
commercial  paper  pledged  as  collateral  security  are  regarded 
as  sustaining  the  relation  of  pledgor  and  pledgee,  and  it  be- 
comes the  duty  of  the  pledgee  in  such  case  to  use  ordinarj'^ 
care  and  diligence  in  the  collection  thereof  if  maturing  before 
the  date  for  which  it  is  pledged.'     A  pledgee  of  commercial 

1  Ante,  sec.  276.  N.  J.  Eq.  823 ;  Iron  and  Steel  Co.  v. 

2  Handy  v.  Sibley,  46  O.  S.  15;  Brick  Co.,  82  111.  548;  Zimpleman  v. 
Moore  v.  Hamaunn,  19  W.  K  B.  388 ;  Veeder,  98  111.  618.  The  utmost  good 
Wheeler  v.  Newbold,  16  N.  Y.  392;  faith  is  required  of  the  pledgee  in 
Fletcher   v.  Dickinson.  7  Allen,  28;  such  cases.     46  O.  S.  15. 

Nelson  v.   Wellington,  5  Bosw.  178 ;         '  Bridge   Co.    v.   Saving   Bank.   46 
Morris  Canal  &  B,   Co.  v.  Lewis,  12    O.  S.  224;  Roberts  v.  Thompson,   14 
17 


258  BAILMENTS.  [§  280^. 

paper  may  bring  suit  thereon  when  it  becomes  due  whether  the 
indebtedness  for  which  it  was  pledged  be  paid  or  not,^  and  such 
suit  may  be  brought  even  tl:ough  the  debt  secured  is  not  due.* 
It  is  not  necessary  in  such  suits  to  either  make  or  allege  a 
demand  upon  the  pledgor.'  The  pledgor  may  collect  the  whole 
amount  of  a  note  h3^pothecated,  even  though  the  debt  for 
which  the  note  is  given  as  security  be  less  than  the  note  it- 
self, and  must  return  the  surplus.*  Collateral  notes  should  be 
held  until  due,  and  if  sold  before  due  to  a  honafide  purchaser 
their  full  value  must  be  credited  to  the  debt.'  While  it  is  the 
duty  of  the  pledgee  to  collect  collaterals  whenever  the  same 
become  due,  still  he  is  not  allowed  to  apply  the  proceeds  to 
the  payment  of  the  debt  secured  until  after  default  in  its  pay- 
ment.^ A  person  receiving  collateral  security  is  bound  to  use 
ordinary  care  in  collecting  it.  and  is  liable  for  any  loss  which 
may  happen  to  the  other  for  any  want  of  care  or  diligence, 
the  rights  and  duties  of  such  parties  being  governed  by  the 
law  of  agency.  But  where  demand  and  notice  is  waived  by 
a  debtor  assigning  collaterals  to  his  creditors,  the  latter  are 
not  bound  to  demand  and  insist  on  payment  of  the  security 
before  maturity;  the  assignment  being  an  absolute  guaranty 
of  payment,  the  plaintiff  is  thereby  relieved  of  all  obligation 
to  demand  payment  when  the  note  matured.' 

Sec.  280a.  Petition  by  pledgor  of  negotiable  paper  against 
pledgee. — 

\_Caption?\ 

Plaintiff  says  that  on  the day  of ,  18—,  he  was  in- 
debted to  the  said  defendant  in  the  sum  of dollars,  and 

in  order  to  secure  the  said  defendant  upon  such  indebtedness 
he  delivered  to  him  as  collateral  security  for  the  payment  of 
said  indebtedness  a  warrant  promissory  note  made  by  one  A.  B. 

for  the  sum  of dollars,  said  note  bearing  date  of  

,  18 — ,  and  payable  within days  after  date;  that  upon 


O.  S.  1 ;  Reeves  v.  Plow,  41  Ind.  204 ;  7  Wis.  492.     Attorney's  fees  cannot 

Nolan  V.  Clark.  10  B.  Mon.  239 :  Mil-  be  recovered.     Bank  v.  Hemingray. 

ler  V.  Bank,  8  Watts,  192.  34  O.  S.  381. 

1  McCarty  v.  Clark,  10  Iowa,  588.  sRoake  v.  Bonte,  9  Am.  Law  Rec. 

2Joue6  V.  Hawkins,  17  Ind.  550.  487;  Springer  v.  Purcell,  5  W.  L.  B. 

3  Paine  v.  Furnas,  117  Mass.  290;  889. 

•Nelson  v.  Edwards,  40  Barb.  -279.  "  15  J.  &  S.  409 :   Farwell  v.  Bank,  90 

<  Atlas  Bank  v.  Doyle,  9  R  I.  76 ;  ::.  Y.  483 :  73 N.  Y.  269 ;  29  Am.  Rep.  142. 

11  Am.  Rep.  219 ;  Hilton  v.  Warren,  ^  Roberts  v.  Thompson,  14  O.  S.  1. 


§  280a.]  BAILMENTS.  259 

maturity  of  said  note  the  same  was  duly  collected  by  the  said 
defendant,  and  the  proceeds  therefrom  were  by  him  duly  ap- 
plied upon  the  said  indebtedness  due  him  from  this  plaintiff, 
whereby  the  same  was  wholly  paid  and  extinguished;  and 
that  after  payment  thereof  there  remained  in  the  hands  of 
said  defendant,  arising  from  the  proceeds  of  the  said  note  so 

pledged  as  collateral,  a  balance  of dollars  belonging  to 

this  plaintiff.     Said  plaintiff  demanded  payment  of  said  sum 

of dollars  from  the  defendant,  which  was  refused,  and 

no  part  thereof  has  been  paid. 

Wherefore  he  asks  judgment  against  the  said  defendant  for 
the  sum  of dollars. 


CHAPTER  21. 


BANKS  AND  BANK  CHECKS. 


Sec.  281.  Some  powers  of  banks. 

283.  Relative  rights  of  bank  and 
depositor. 

Payments  by  .bank. 

Duties  and  liabilities  of 
bank  in  making  collec- 
tions. 

Right  of  set-oflE  between 
bank  and  depositor. 

Petition  against  bank  for 
damages  for  neglect  in 
collecting  note  or  bill. 

Petition  by  one  bank  against 
another  for  failure  to  pro- 
test note  sent  in  for  col- 
lection, loss  occurring 
through     insolvency    of 


283, 

284. 


285. 


286. 


287. 


makers  and  release  of  in- 
dorsee 
Sec.  288.  Petition    for    recovery    on 
lost  certificate  of  deposit 
against  bank  before  due. 

289.  Legal  status  of  checks. 

290.  Petition   of   payee  against 

drawer  of  check. 

291.  Petition  by  indorsee  against 

drawer. 
293.  Petition  of  drawer  against 
drawee. 

293.  Certified  checks  and  form 

of  petition. 

294.  Answer  that  certified  check 

was  a  forgery. 


Sec.  281.  Seme  powers  of  banks. —  The  expression,  "an 
association  with  banking  powers,"  as  used  in  the  constitution, 
or  "  banking  institutions  or  banks,"  means  those  authorized  to 
issue  bills  or  notes.^  Discounting  paper  by  a  bank  is  only  a 
method  of  loaning  money,  and  it  is  thus  authorized  to  acquire 
notes  and  bills  which  are  perfect  and  available  in  the  hands 
of  a  borrower,  as  well  as  his  own  paper  made  directly  to  the 
bank;*  and  the  rights  and  liabilities  of  parties  growing  out 
of  their  transactions  with  a  national  bank  in  loaning  money 
and  charging  interest  thereon,  and  actions  between  them,  are 
prescribed  by  the  national  bank  act  and  are  not  controlled  by 
state  legislation.'    They  are  not  permitted  to  take  or  charge 


1  Dearborn  v.  Northwestern  Sav. 
Bank,  42  O.  S.  617;  O.  L.  &  T.  Co.  v. 
Debolt,  16  How.  438 ;  Bank  v.  Hines, 
3  O.  S.  1-31 ;  Corwin  v.  U.  &  C.  M.  L 
Co.,  14  Ohio,  6;  Bates  v.  S.  &  I* 
Ass'n,  42  0.  S.  655. 


2  Smith  v.  Bank,  26  0.  S.  141;  Nia- 
gara Bank  v.  Baker.  15  O.  S.  69: 
Fletcher  v.  Bank,  8  Wheat.  333. 

3  Higley  V.  Bank,  26  O.  S.  75. 


§  282.]  BANKS  AND  BANK  CHECKS.  261 

a  rate  of  interest  greater  than  is  allowed  by  the  laws  of  the 
state  in  which  they  are  situated,  and  a  bank  so  charging  usu- 
rious interest  forfeits  all  the  interest  due  upon  a  note.*  Al- 
though authorized  to  take  mortgages  on  real  estate  to  secure 
debts,  yet  where  a  bank  grants  an  extension  of  the  time  of 
payment  of  such  indebtedness  at  a  usurious  rate  of  interest, 
taking  therefor  notes  and  mortgages,  the  usury  avoids  only 
the  interest;  and  the  notes  and  mortgages  a,re  bona Jide  se- 
curity to  the  extent  that  the  debt  is  valid.- 

A  bank  may  agree  to  collect  commercial  paper  and  take  the 
proper  steps  to  charge  the  indorsers  gratuitously,  and  it  will 
not  be  ultra  vires  so  to  do.  If  under  such  circumstances  it  neg- 
lects to  protest  a  note,  it  is  liable  upon  its  contract,  although 
there  was  no  consideration,  and  the  owner  relied  only  on  the 
voluntary  undertaking.*  A  certificate  of  deposit  given  by  a 
bank  for  a  loan  of  money  is  not  such  a  note  as  it  is  prohibited 
from  issuing,  as  it  is  not  intended  to  circulate  as  money,  but 
represents  only  the  indebtedness  to  the  depositor  for  a  loan.* 

The  principles  of  agency  are  applicable  to  banks,  they  being 
liable  for  acts  of  oflBcers  the  same  as  other  corporations  and 
individuals,  and  cannot,  therefore,  show  either  abuse  or  disre- 
gard of  authority  by  one  of  them,  nor  fraud  or  bad  faith  as  a 
defense  to  an  action  against  it  by  an  innocent  party.* 

Sec.  282.  Relative  rights  of  bank  and  depositor.— When 
a  banker  opens  an  account  with  his  customer  and  receives  a 
deposit,  there  is  an  implied  agreement  that  the  former  will 
hold  the  fund  subject  to  his  order,  and  money  so  received  on 
general  deposit  becomes  the  property  of  the  bank,  and  the  re- 
lation subsisting  between  the  depositor  and  bank  is  that  of 
creditor  and  debtor,  not  of  bailee  or  trustee  for  the  money.* 
It  does  not  agree  to  pay  checks  out  of  any  particular  fund, 

1  Shunk  V.  Bank,  22  0.  S.  508;  Hade  511 ;  Frankfort  Bank  v,  Johnson,  24 
V.  McVey,  31  O.  S.  231.  See  27  W.  L.  Me.  490 ;  Farmere'  &  M  Bank  v. 
B.  65-6.  Bank,  16  N.  Y.  133. 

2  Allen  T.  Bank,  23  O.  S.  97.  *>  Bank  v.  Brewing  Co.,  50  O.  S.  151 ; 

3  White  V.  Bank,  4  W.  L.  B.  791.         McGregor   v.   Loomis,  1    Disn.  247 ; 
*  Logan  Nat  Bank  v.  Wilhamson,  2    Coverts  v.  Rhodes,  48  O.  S.  71 ;  Bolles 

O.  C.  C.  118.  on    Banks    and     Banking,    sec.    34. 

5  Bank  v.  Blakesley,   42  O.  S.  645.  Sometimes  the  relation  is  fiduciary. 

See    Merchants'    Bank   v.  Bank,  10  Id. 
Wall  604;  Thayer  v.  Bussen,  19  Pick. 


262 


BA.NKS    AND    BANK   CHE0K3. 


[§  282. 


and  does  not  retain  any  specific  fund  for  that  purpose,  the 
funds  of  the  depositor  becoming  merely  a  part  of  the  general 
funds  of  the  bank.  The  bank  not  only  gives  the  right  to  the 
depositor  to  draw  on  the  deposit,  but  promises  that  all  drafts 
will  be  paid  on  presentation,  and  that  all  checks  will  be  ac- 
cepted, thus  agreeing  in  advance  to  honor  drafts  and  checks, 
furnishing  a  strong  analogy  to  the  rule  which  binds  the  drawee 
of  a  bill  as  acceptor.^  A  check,  therefore,  drawn  upon  the 
money  of  a  depositor  operates  as  an  Sissignment  pro  tanto  only 
when  accepted  by  the  bank,  and  if  the  former  be  indebted  to 
the  latter  upon  past-due  paper  at  the  time  the  check  is  drawn, 
the  bank  may  refuse  payment  thereof  and  apply  so  much  of 
the  deposit  as  may  be  required  for  the  payment  of  the  notes.- 
A  bank  may  apply  money  on  general  deposit  on  debt  due  from 
depositor.'  A  bank  has  a  lien  also  on  the  proceeds  of  a  draft 
deposited  with  it  for  collection,  and  may  apply  the  same  against 
any  balance  due  it  by  a  depositor,  and  may  retain  all  proceeds 
collected  as  against  an  assignee  for  creditors  of  a  depositor; 
but  this  rule  will  not  be  applicable  to  drafts  which  are  not 
collected,  or  that  may  be  collected  subsequent  to  an  assign- 
ment;* but  if  a  depositor  be  only  a  surety  for  a  debt,  such  an 
application  cannot  be  made  without  the  depositor's  consent.* 
Considerable  conflict  prevails  on  the  question  as  to  the  ef- 
fect of  a  check  drawn  for  only  a  portion  of  a  fund,  many 
courts  holding  that  it  will  operate  as  an  equitable  assignment 
of  so  much  of  the  fund  as  may  be  stated  in  the  check  ;^  but 
in  Ohio,  where  the  idea  that  a  fund  of  a  depositor  is  held  in 
trust  is  entirely  repudiated,  a  check  unaccepted  by  a  bank  for 
a  part  of  the  fund  will  not  operate  as  an  assignment  of  such 
fund ;  and  if  the  drawer  thereof  makes  an  assignment  before 


1  McGregor  v.  Loomis,  supra;  9 
Mass.  55 ;  2  Met  53. 

2  Bank  v.  Brewing  Co.,  29  W.  L.  B. 
294;  50  O.  S.  151. 

3  Second  Nat.  Bank  v.  Hill,  76  Ind. 
223;  Scott  v.  Shirk,  60  Ind.  160; 
Comb  V.  Morris,  118  Ind.  179 ;  Com'l 
Nat.  Bank  v.  Henniger.  105  Pa.  St. 
496:  Nat.  ^Mahaiwe  Bank  v.  Peck,  127 
Mass.  298. 

*  Hackman  v.  Schaf,  5  W.  L.  B.  851. 


5  Lamb  v,   Morris,    118    Ind.    179; 
Bedford  Bank  v.  Acoam,  125  Ind.  584. 

eVoorhes  v.  Heskett,  1  O.  C.  C.  1 
See  McGregor  v.  Loomis,  1  Disn.  247 
Bank  v.  Hemingray,  1  C.  S.  C.  R 
435 ;  Stewart  v.  Smith,  17  O.  S.  82 
Andrew  v.  Blachly,  11  O.S.  89;  Mor 
rison  v.  Bailey,  5  O.  S.  13:  25  111.  35 
68  111.  398;  80  III  212;  8  Bush,  357; 
26  la.  315. 


§  282.]  BANKS   AND    BANK   CHECKS.  263 

the  same  is  presented  for  payment,  and  notice  of  such  assign- 
ment reaches  the  bank,  the  fund  deposited  belongs  to  the  as- 


signee 


A  different  rule  applies  when  a  check  is  drawn  for  the 
whole  of  a  fund  than  when  drawn  for  only  a  portion,  in 
which  case  it  will  be  considered  a  sufficient  designation  of  the 
specific  fund  to  operate  as  an  assignment.  This  distinction 
is  made  by  many  well-considered  cases.-  Where  a  bank  re- 
ceives a  check  drawn  upon  a  depositor's  account,  and  later  on 
the  same  day  receives  a  draft  upon  the  same  account,  which 
is  duly  credited  thereon,  it  operates  as  an  acceptance  of  the 
draft,  and  the  bank  becomes  liable  on  the  check  which  is 
waiting  payment  as  soon  as  the  draft  is  credited  upon  the 
payor's  account.'  A  bank  is  bound  to  pay  the  checks  of  a 
depositor  who  has  an  account  in  his  own  name  as  agent  even 
though  it  receives  notice  from  another  person  that  the  ac- 
count is  his;  and  if  it  arbitrarily  refuses  to  pay  is  liable  in 
damages  even  though  no  special  damages  are  shown.*  Where 
paper  is  pledged  as  collateral  with  a  bank  for  a  sura  larger 
than  a  loan  made  by  it  to  the  owner  of  such  paper,  the  bank 
does  not  acquire  a  lien  upon  the  residue  thereof  so  as  to  ap- 
propriate the  same  to  the  payment  of  another  note  indorsed 
to  such  party  by  the  bank  before  the  pledge  of  the  collateral.' 
If  a  bank  discounts  a  draft  and  passes  the  same  to  the  credit 
of  a  drawer,  allowing  him  to  check  against  it,  it  becomes  a 
lona  fide  holder  thereof  for  value,  and  is  protected  against 
any  equities  between  the  original  parties.^    Money  received 

1  Covert  V,  Rhodes,  48  O.  S.  66;  McComber  v.  Dome,  2  Allen.  541; 
Bank  v.  Brewing  Co.,  50  O.  S.  151.  Gibson  v.  Clark.  20  Pick.  10;  Lewis 
See  Pomeroy's  Equity,  sec.  1284 ;  v.  Bank,  30  Minn.  134 ;  Jones  v.  Wood 
Bank  v.  Millard,  10  Wall.  152 ;  La-  Co.,  13  Nev.  359 :  Rosenthal  v.  Bank, 
clede  Bank  v.  Schuler,  120  U.  S.  515;  17  Blatch.  318;  Dolsiu  v.  Brown,  13 
Grammel  v,  Garner,  55  Mich.  201 ;  La.  Ann.  351 ;  Sands  v.  Matthews,  27 
Dickinson  v.   Coates,   79    Mo.    250 ;  Ala.  399. 

Billiard  v.  Bullard,  1  Gray,  605;  71  3  Northern   Bank  of  Ky.  v.  Mer- 

N.  Y.  325 ;  20  Mo.  577  :  46  Pa.  St.  410 ;  chants'  Bank.  23  W.  L.  B.  120. 

11  Paige,  612 ;  34  Md.  574.  <  Patterson  v.  Nat.  Bank,  23  W.  L. 

2  Gardner  v.   Nat   City   Bank.  39  B.  269  (Pa.):  47  Ph.  Leg.  Int.  118. 
O.  S.  600 ;  Moore  v.  Davis,  57  Mich.  5  Stowe  v.  Bank,  1  O.  C.  C.  524. 
251 ;  Bank  v.  Railway.  52  Iowa.  378 ;  6  First  Nat  Bank  v.  Crawford,  2  C, 
Mandeville  v.   Welch,  5  Wheat  77 ;  S.  C.  R.  125. 

Kingman  v.  Perkins,  105  Mass.  Ill; 


264  BANKS  AND  BANK  CHECKS.  [§  283. 

by  an  official  in  his  official  capacity  and  deposited  by  him  in 
his  private  account  is  personally  liable  therefor  if  the  bank 
fails  and  the  money  is  lost.^ 

The  statute  of  limitations  does  not  begin  to  run  against  a 
deposit  or  debt  until  demand  has  been  made,  or  unless  a  bank 
stops  payment,  in  which  event  the  necessity  for  a  demand  no 
longer  exists.^  A  bank  is  liable  in  damages  to  its  depositors 
if  it  refuses  without  just  cause  to  honor  a  check  drawn  by  the 
latter,^  but  it  is  not  bound  to  pay  part  of  a  check  if  it  has  not 
sufficient  funds  on  deposit  to  pay  the  whole  amount.'*  A  per- 
son depositing  money  in  his  name  as  agent,  whose  checks 
have  been  honored,  may  sue  the  bank  in  his  own  name  for 
any  balance  due  on  account.' 

Sec.  283.  Payments  by  bank. —  It  is  the  duty  of  a  bank  to 
identify  all  persons  who  present  paper  for  payment,  and  it  must 
see  to  it  that  the  payee  named  in  the  check  is  the  proper  per- 
son, that  it  pays  according  to  the  order  to  the  party  named 
therein  or  to  one  holding  it  under  a  genuine  indorsement. 
The  rightful  possession  of  a  check  payable  to  order  confers 
no  authority  on  the  bank  to  pay  it  to  such  person,  and  its 
duty  to  pay  on  a  genuine  indorsement  is  not  affected  by  any 
custom  of  bankers;  hence  if  it  relies  on  a  false  representation 
as  to  identity,  for  which  neither  drawer  nor  payee  is  respon- 
sible, the  bank  is  liable,*  and  its  liability  cannot  be  affected 
by  any  act  or  omission  of  the  drawer  in  issuing  a  check  of 
which  the  bank  has  no  notice.''  While  money  paid  under  a 
mistake  of  facts  and  without  consideration  may,  as  a  general 
rule,  be  recovered,  yet  there  is  a  well-settled  exception  to  this 
rule  where  payment  is  made  by  a  drawee  of  forged  bills  or 

iShaw   y.   Bauman,  34   O.  S.  25;  <  In  re  Brown,  2  Story,  502. 

Wren  v.  Kirton,  11  Ves.   377;  In  re  ^  McLaughlin  v.  National  Bank,  43 

Stafford,    11   Barb.   353:    Brown    v.  N.  W.  Rep.  715. 

Ricketts.  4  Johns.  Ch.  303 ;  Utica  Ins.  ^  Dodge  v.  Bank,  30  O.  S.  1.     See 

Co.  V.  Lynch,  11  Paige,  520:  Phillips  cases  in  next  note;  Kuhn  v.  Frank, 

V.  Lamar,  27  Ga.  228.  10  Am.  L.  Rec,  622;  7  W.  L  B.  134. 

^  Armstrong  v.  Warner,  21  W.  L.  ^  Dodge  v.  Bank,  20  O.  S.  234.    Sc-e 

B.  136;  Morse  on  Banking,  sec.  322.  Graves  v.  Bank,  17  N.  Y.  205;  Mor- 

a  Whittaker  v.  Bank.  6  C.  &  P.  700 ;  gan  v.  Bank,  1  Kern,  404 ;  Shaffer  v. 

Marzetti  v.  Williams,  1  B.  A:  A.  415;  McKee.   19  O.  S.  526;  Vanb'ibber  v. 

Watts  V.  Christi,  11  Beav.  546 ;  Rolin  Bank,  14  La.  Ann.  481. 
V.  Steward,  14  C.  B.  594. 


I  284.]  BANKS    AND   BAKTK    CHECKS.  265 

checks  to  a  holder  for  value,  in  which  event  the  money  can- 
not be  returned  without  prejudice ;  ^  but  where  there  is  any 
negligence  the  loss  will  fall  upon  hira  who  is  negligent;  and 
in  the  absence  of  negligence  the  loss  will  remain  where  the 
course  of  business  has  placed  it.-  AVhere  a  check  made  pay- 
able to  a  drawee  himself  without  the  word  "order"  or 
"  bearer,"  and  indorsed  in  blank,  is  stolen,  and  is  paid  on  pres- 
entation, the  bank  is  protected.'  Payment  made  by  a  savings 
bank  to  the  wrong  person  on  presentation  of  a  deposit  book, 
the  person  claiming  to  be  the  depositor  and  giving  correct 
answers  as  to  the  mode  of  deposit,  will  not  make  the  bank 
liable  where  its  rules  require  the  deposit  book  to  be  presented 
in  order  to  draw  the  money.*  A  national  bank  cannot  pro- 
vide for  the  cashing  of  checks  drawn  upon  it  at  any  other 
place  than  its  banking  house;  hence  where  a  bank  in  another 
city  has  funds  in  its  possession  belonging  to  another  bank, 
and  has  cashed  checks  drawn  upon  the  latter  bank  under  an  ar- 
rangement for  that  purpose,  the  bank  so  cashing  the  checks 
which  happen  to  be  worthless  cannot  retain  the  money  in  its 
possession  as  against  t'he  receiver  of  the  bank  upon  which  the 
checks  were  drawn.'  A  bank  may  refuse  to  cash  a  check 
when  it  has  knowledge  that  it  was  given  in  payment  of  a  bet 
made  in  violation  of  law ;  and  if  a  check  is  so  cashed  the 
drawee  cannot  recover  the  amount  from  the  bank.® 

Sec.  284.  Duties  and  liabilities  of  banks  in  making  col- 
lections.—  When  commercial  paper  is  indorsed  to  a  bank  for 
the  purpose  of  collection,  the  relation  of  principal  and  agent 
exists  between  the  owner  of  the  paper  and  the  banking  com- 
pany, and  the  latter  holds  the  proceeds  arising  therefrom  in 
trust.'  A  correspondent  selected  by  a  bank  is  not  a  sub-agent 
of  the  owner  of  the  note,  but  only  the  instrument  through 
which  the  bank  undertaking  the  collection  assumes  to  perform 

1  Ellis  V.  Insurance  Co.,  4  O.  S.  628 ;  only  as  directed.    Shipman  v.  Bank, 

Bank  of  U.  S.  v.  Bank,  10  Wheat  126  N.  Y.  318 ;  22  Am.  St  Rep.  821. 

333.  *  Fidelity  Bank  v.  Cincinnati  Na- 

-  GloucesTpr  Bank  v.  Bank,  17  Mass.  tional  Bank,  21  W.  L.  B.  361. 

33.  6  McCord  v.  Bank.  28  W.  L.  B.  303 ; 

3  Bowden  v.  Bank,  7  W.  L.  B.  283.  Morse  on  Bank.,  sec.  311. 

*Gifford  V.  Bank,  11  L.  R  A.  794;  'Hamilton     v.     Cunninghano,    3 

21  At!.   Rep.  840.     Bank  must  pay  Brock.  350. 


^6Q  BANKS    AND    BANK    CHECKS.  [§  284r. 

its  duty;'  and  if  the  bank  makes  an  assignment  its  trustee 
cannot  apply  the  same  as  a  credit  to  the  payment  of  a  debt  of 
the  bank.^ 

It  is  a  well-settled  ride  that  when  a  bank  has  made  an  as- 
signment or  suspends,  it  cannot  receive  payment  upon  paper 
previously  deposited  for  collection  in  such  a  way  that  it  will 
pass  into  its  general  assets,  and  the  ow^ner  thereof  thereby 
placed  among  its  general  creditors  and  entitled  only  to  divi- 
dends. The  bank  acting  only  as  an  agent,  there  is  no  reason 
why  its  general  creditors  should  receive  the  benefit  of  such 
paper,  if  the  owner  can  trace  or  ascertain  his  property  in  its 
substituted  form.'  It  is  only  necessary  that  the  owner  of  the 
paper  show  that  the  bills  or  notes  were  impressed  with  a  trust, 
and  the  latter  will  be  required  to  respond  either  in  the  article 
taken  or  its  value.* 

A  bank  to  which  paper  is  sent  by  another  bank  for  collec- 
tion, in  the  absence  of  any  special  contract  or  controlling 
usage,  is  regarded  as  the  agent  of  the  primary  agent,  the  first 
bank,  and  not  of  the  owner  of  the  paper,  and  is  therefore 
liable  for  any  neglect  of  duty  in  taking  the  necessary  steps 
to  charge  the  drawer  and  indorser.'  But  where  a  bank  in 
one  state  receives  a  draft  for  collection  in  another  state,  and 
forwards  the  same  to  its  correspondent  in  the  latter  state,  it 
is  responsible  to  the  owner  for  the  conduct  of  its  correspond- 
ent, who  is  regarded  as  its  agent,  and  not  the  sub-agent  of  the 
owner  of  the  draft,  and  payment  to  the  agent  is  payment  to 
the  bank.^  This  question  is  not  free  from  difficulty,  and  must 
be  very  largely  governed  by  the  circumstances  in  each  case. 
It  quite  frequently  occurs  that  there  is  an  agreement  entered 
into  by  the  owner  of  the  paper  and  the  bank  that  it  shall  be 
sent  to  a  particular  correspondent.     In  such  cases  the  owner 

1  Reeves  v.  State  Bank,  8  O.  S.  465 ;    Story's  Equity,  sec.   1228 ;    Bank  v. 
Bank  v.  Moore,  4  W.  L.  B.  291 ;  S.  C,     Bank,  2  McCrary,  438. 

8  Am.  K  Rec.  97.  *  Thompson  v.  Savings  Institution, 

2  Jones  V.  Kilbreth,  49  O.  S.  401;     8  Atl.  Rep.  97  (N.  J.,  1887). 

Gilbert  v.  Sutliff,  3  O.  S.  129 ;  Carter  •'  Allen    v.    Merchants'    Bank,    22 

V.  Lepsey,  70  Ga.  417;  Commercial  Wend.  215. 

Bank  v.  Armstrong.  39  Fed.  Rep.  684?  8  Reeves  v.  State  Bank.  8  O.  S.  465 

Levi  V.  Bank.  5  Dill.  109.  (1858);   Hermann  v.  Bank,  10  O.  S. 

8  Jones  V.  Kilbretli,  49  O.  S.  412;  446. 
Morse  on   Banking,  sec.   248a.     See 


§  284.]  BANKS  AND  BANK  CHECKS.  267 

of  paper  has  as  much  to  do  with  the  selection  of  the  agent  as 
does  the  bank.  On  the  other  hand,  there  are  l)anks  who  hold 
themselves  out  as  collecting  agencies  and  who  have  their  spe- 
cial correspondents  in  various  localities,  and  in  sending  paper 
for  collection  indorse  the  same  to  correspondents  of  their 
own  selection,  in  which  case  it  is  perfectly  clear  that  the  cor- 
res))ondents  are  the  agents  of  the  bank,  who  must  be  held  re- 
sponsible for  their  acts.^  It  is  the  duty  of  a  bank  holding 
commercial  paper  as  agent  for  collection,  when  dishonored  at 
maturity,  to  take  the  usual  and  proper  action  required  to 
charge  indorsers,  and,  if  the  latter  be  discharged  by  any  neg- 
lect in  this  respect,  the  bank  is  liable  as  agent  to  the  owner 
as  principal  for  resulting  damages.-  A  notary  in  protest- 
ing a  note,  when  the  owner  of  paper  directs  or  dictates  the 
mode  of  fixing  an  indorser's  liability,  is  the  agent,  not  of 
the  bank,  but  of  the  owner  of  the  paper.^  The  measure  of 
damages  in  such  cases  is  the  face  of  the  bill  or  note  with  in- 
terest.^ It  is  the  duty  of  a  bank  receiving  paper  as  collateral, 
which  is  made  payable  at  a  place  designated  by  the  parties 
thereto,  to  transmit  it  upon  maturity  to  such  place  for  collec- 
tion ;  if  the  place  of  payment  be  a  bank,  it  is  the  agent  of  the 
owner  of  the  paper,  and  not  of  the  bank  holding  it  as  collat- 
eral; hence  the  latter  is  not  liable  to  the  owner  for  any  loss 
occurring  by  reason  of  failure  on  the  part  of  the  bank  to  which 
the  paper  is  sent  for  collection.  A  bank  receiving  paper  as 
collateral  is  bound  only  to  ordinary  care  and  diligence  in  col- 
lecting it.' 

Paper  indorsed  merely  "for  collection  "  passes  only  so  far 
as  to  enable  the  indorsee  bank  to  demand,  receive  and  sue  for 


1  Commercial  Bank  v.  Union  Bank,  v.  Bank,  20  Johns.  372.    See,  also, 
11  N.  Y.   203 ;    Thaber    v.  Perrot,  2  cases  cited  in  next  note. 

Gall.  565 ;  East  Haddam  Bank  v.  Sco-  3  Bank  v.  Butler,  41  O.  S.  519-25. 

vill,  12  Conn.  303 ;  Fabens  v.  Com-  *  American  Express  Co.  v,  Haire, 

mercial  Bank,  23  Pick.  330 :  Mont-  21  Ind.  4 ;  83  Am.  Dec.  334 ;  Chapman 

gomery  County  Bank  v.  Albany  City  v.  McCrea.  63  Ind.  360 ;  Montgomery 

Bank,  7  N.  Y.  459.  County  Bank  v.  Albany  City  Bank. 

2  Bank  V.  Bank,  49  O.  S.  351.     See  7  N.  Y.  459. 

Huff  V.  Hatch.  2  Disn.  63 :  Bank  v.  5  Bridge  Co.  v.  Savings  Bank,  46 

Triplet,  1  Pet.  36 ;  Mechanics' Bank  V.  O.  S.  224;  Reeves  v.  Plow.  41  Ind. 

Merchants'  Bank,  6  Met.  27  ;  Smeads  204 ;     Lawrence    v.    McCalmont,    2 

How.  426. 


268  BANKS  AND  BANK  CHECKS.  [§  285. 

the  money,  and  the  owner  may  control  his  paper  until  it  is 
paid.  An  indorsement  of  a  bank  directing  payment  "for  ac- 
count of  itself"  does  not  imply  that  it  is  the  owner  of  the 
paper  and  cannot  dispute  the  right  of  the  owner  to  stop  pay- 
ment thereof.^  Where  a  draft  is  drawn  in  one  state  and  is 
made  payable  in  a  foreign  country,  under  whose  laws  the  bank 
is  not  bound  to  inquire  into  the  genuineness  of  an  indorse- 
ment, and  therefore  pays  the  draft  to  a  wrong  person,  such 
payment  on  a  forged  indorsement  is  good  in  the  hands  of  the 
drawers,  who  are  discharged  from  further  responsibility  if 
payment  can  be  made  in  such  country  on  a  forged  indorse- 
ment, as  the  question  of  default  is  governed  by  the  law  of  the 
foreign  country.-  A  person  who  undertakes  gratuitously  to 
collect  paper,  and  sends  it  to  a  bank  for  that  purpose,  where 
the  same  is  paid,  and  is  lost  by  reason  of  failure  of  the  bank, 
the  party  so  undertaking  the  collection,  though  gratuitously, 
is  liable  for  the  loss,  as  the  bank  was  his  agent.  It  is  a  con- 
tract the  consideration  for  which  is  not  of  benefit  but  of 
harm  on  the  one  hand  and  trust  and  confidence  reposed  in 
the  person  making  the  collection.^  In  an  action  against  a 
bank  for  non-presentment  of  paper  for  payment,  it  is  not 
necessary  to  allege  that  the  parties  were  insolvent  at  the 
time,  if  it  is  averred  that  there  were  funds  in  the  bank  where 
the  paper  was  due  and  payable,  as  the  question  of  solvency 
was  immaterial  so  long  as  it  appeared  that  the  money  was 
in  the  bank;*  though  it  must  be  alleged  that  the  plaintiff  was 
damaged  by  failure  to  collect.* 

Sec.  285.  Right  of  set-off  between  bank  and  depositor. — 
"Where  a  bank  has  on  deposit  money  belonging  to  a  person  who 
becomes  insolvent,  and  is  indebted  to  the  bank  upon  notes  by 
it  declined,  the  proceeds  of  which  constitute  a  portion  of  such 
deposit  account,  enough  of  the  account  can  be  withheld  by 
the  bank  to  protect  and  pay  such  notes,  as  against  the  in- 
solvent or  his  assignee,  but  not  as  against  honafide  holders  of 
checks  drawn  upon  such  fund.^     So  where  a  bank  holding 

1  Freeman's   Nat    Bank    t.  Tube        3  Young    v.    Noble,   2    Disn.   485: 
Works,  8  L.  R  A.  42 ;  34  N.  E.  Rep.  White  v.  Bank,  4  \V.  L.  B.  791. 
779;  151  Mass.  413.  *  Laughlin  v.  Greene,  14  la  92. 

2  Dreyf UBS    v.    Adae,   4  W.    L.    B.        ^  Perry  v.  Muzzer,  68  Mo.  477. 
671-7a  e  Skunk  v.  Bank,  16  W.  L.  B.  353  j. 

Ford  V.  Thornton,  3  Leigh,  695. 


§  286.]  BANKS  AND  BANK  CHECKS.  269 

notes  against  a  depositor  who  has  a  deposit  account  therein 
makes  an  assignment,  the  depositor  has  the  right  to  have  the 
fund  ^yhich  he  has  in  the  bank  applied  on  tiie  debt  due  from 
him  to  the  bank ;  ^  and  the  liability  of  a  stockholder  of  a  na- 
tional bank  may  be  set  off  as  against  a  dividend  due  on  the 
deposit  account  of  such  stockholder  by  a  receiv^er  winding 
up  its  affairs.^  The  rule  is  not  changed  although  the  claim  to 
dividend  has  been  assigned  to  others.'  But  a  stockholder's 
indebtedness  as'ainst  a  national  bank  cannot  be  set  off  against 
the  claims  of  the  pledgee  of  the  stock  of  the  former,  who  re- 
ceived it  in  pledge  to  secure  the  payment  of  a  loan  made  on 
the  faith  of  such  pledge,  without  knowledge  of  the  claims  of 
the  bank  or  that  it  was  insolvent.* 

"Where  stock  of  a  bank  has  been  increased,  and  the  stock- 
holder has  paid  his  share  of  such  increased  stock  before  it  had 
been  properly  authorized,  and  the  bank  goes  into  the  hands 
of  a  receiver  in  the  meantime,  such  stockholder  may  have  the 
payment  made  by  him  upon  the  increase  of  stock  set  off 
against  anv  indebtedness  due  from  him  to  the  bank.^  Where 
a  party  who  has  made  an  assignment  for  the  benefit  of  cred- 
itors gives  a  check  upon  a  bank  upon  funds  which  he  has 
deposited  there,  but  prior  to  the  date  of  assignment,  which 
is  paid  by  the  bank  without  knowledge  of  the  assignment, 
such  payment  cannot  be  raised  as  a  defense  by  the  bank  in  an 
action  by  the  assignee  against  it  for  the  recovery  of  the 
money.^ 

Sec.  286.  Petition  for  damages  against  bank  for  neglect 
in  collecting  note  or  bill. — 

[Cajjtion.'] 

Plaintiff  says  that  the  defendant  is  a  corporation  duly  in- 
corporated under  the  national  banking  laws  of  the  United 

States  and  doing  business  at  ,  Ohio.     On  tbe  day 

of ,  18 — ,  the  plaintiff  delivered  to  tlie  defendant  a  ]^rom- 

issory  note  [or,  bill],  the  property  of  the  plaintiff,  calling  for 
dollars,  dated ,  18 — ,  due  in months  after  date, 

1  Bank  v.  Hemingray,  34  O.  S.  381 ;  3  id, ;  Brown  v.  Hitchcock,  36  O.  S. 

&  a,  31  O.  S.   168.     See  Waterman  667. 

on  Set-ofiF,  sec.  131 ;  Smith  v.  Felton,  *  McConville  v.  Means,  21  W.  L.  B. 

43  N.   Y.   419;  Pomeroy's  R,  &  R,  193. 

sec.  163.  8  Armstrong  v.  Law,  27  W.  L.  B. 

■    2BrowneU  v.  Armsti'ong,   20    W.  100. 

L.  B.  465.  6  Chaffee  v.  Bank,  40  O.  S.  1. 


270  BANKS  AND  BANK  CHECKS.  [§  287. 

made  by  E.  F.,  payable  to  E.  A.,  in  the  First  National  Bank 
of ,  Ohio,  and  indorsed  by  said  E.  F.  and  L.  A, 

That  the  defendant,  in  consideration  of  the  plaintiff's  leav- 
ing  said  note  with  it  for  collection,  and  of  plaintiff's  trust  and 

confidence  in  th*^  defendant  [and  of  per  cent,  of  the 

amount  collected  thereon],  accepted  the  same  for  collection, 
and  agreed  to  use  due  diligence  in  demanding  payment. 

That  said  E.  F.,  maker  of  said  note,  was  ready  and  willing 
to  pay  the  same  on  the  day  of  maturity,  and  Avould  have  paid 
the  same,  but  the  defendant  negligently  omitted  to  present 
the  same  for  payment,  and  shortly  thereafter  said  maker  be- 
came and  still  is  wholly  insolvent,  whereby  plaintiff  has  wholly 

lost dollars,  the  amount  due  on  said  note,  for  which  he 

demands  judgment. 

Note.—  Thornton's  Forms.  See  form  in  Chapman  v.  McCrea,  63  Ind.  360. 
Damages  for  failure  to  collect  must  be  alleged.  Perry  v.  Musser,  68  Mo.  477. 
Insolvency  of  maker  should  be  shown,  otherwise  damages  will  be  limited  to 
expenses  incurred.  Hough  v.  Young,  1  O.  504 ;  Borup  v.  Nininger,  5  Minn. 
523.     As  to  solvency  of  indorser,  see  Steele  v.  Russell,  5  Neb.  211. 

Sec.  287.  Petition  by  one  bank  against  another  for  fail- 
ure to  protest  note  sent  it  for  collection,  loss  occurring 
through  insolTency  of  the  makers,  and  release  of  indorser. 

\_Caj)f  Ion.'] 

The  said  plaintiff,  for  this  its  cause  of  action  against  the  said 
defendant,  says  that  the  said  plaintiff  and  defendant  are  each 
banking  corporations  under  the  laws  of  the  United  States; 
that  they  are  each  doing  and  carrying  on  a  general  banking 

business,  the  said  plaintiff  at ,  Ohio,  and  the  defendant  at 

,  Ohio. 

The  said  plaintiff  says  that  in  the  due  course  of  its  business 
it  purchased  from  the  payee  and  became,  before  due,  the 
owner  and  holder  of  a  note  of  one  F.  &  P.,  residing  and  doing 

business  at ,  Ohio,  a  true  copy  of  which  note  is  as  follows : 

\_Set  out  note.'] 

That  at  the  time  of  the  purchase  by  plaintiff  of  said  note, 
the  said  S.  J.  P.  indorsed  said  note  and  delivered  the  same  to 
plaintiff,  a  true  copy  of  said  indorsement  being  as  follows: 
"  S.  S.  P." 

The  said  plaintiff  further  says  that  some  time  before  said  note 
became  due,  it  sent  the  same  to  the  defendant  for  collection 
and  to  make  returns;  and  avers  that  said  defendant  received 
said  note  and  undertook  the  collection  thereof,  and  that  in 
the  event  of  non-payment  it  likewise  undertook  to  protest 
said  note  and  fix  the  liability  of  the  indorser,  and  it  held  the 
same  from  date  of  receipt  until  some  weeks  after  it  was  past 
due;  that  said  note  was  not  paid  when  due,  and  that  said 
defendant  failed  and  neglected  to  protest  or  have  said  note 
protested. 


I 


§  288.]  BANKS  AND  BANK  CHECKS.  271 

Plaintiff  avers  that  the  said  makers  ( F.  c*e  P.)  of  said  note 
made  an  assignment  within  a  day  or  two  after  said  note  be- 
came due,  and  are  w^holly  insolvent;  that  the  said  indorser 
(S.  J.  P.)  has  been  released  and  discharged  as  an  indorser 
from  any  and  all  liability  on  said  note;  that  by  reason  of  the 
failure  and  neglect  of  said  defendant  to  cause  said  note  to  be 
protested  when  it  became  due  and  was  not  paid,  it  has  been 

damaged  and  injured  to  the  extent  of  and  in  the  sum  of 

dollars,  together  with  interest  from . 

Wherefore  the  plaintiff  prays  judgment  against  the  said  de- 
fendant for  the  sum  of dollars,  with  interest  from . 

Note. —  Tt  is  the  duty  of  a  bank  acting  as  agent  to  take  the  usual  steps  to 
charge  the  indorsers,  and  in  this  respect  is  liable  in  damages  for  negligence. 
Ante,  sec.  384;  Bank  v.  Bank.  49  O.  S.  351:  Huff  v.  Hatch,  2  Disn.  63; 
Blatn  V.  Bank,  26  Am,  Rep.  120.  The  duty  of  a  bank  in  sncli  cases  is  plain. 
Lavvson  v.  Bank,  1  O.  S.  206 ;  Bank  v.  McGuire.  33  O.  S.  295-304 ;  Daniel's 
Neg.  Inst.,  sec.  1039.  An  indorser  in  blank  binds  himself  to  pay  the  note 
if  the  maker  does  not,  and  should  be  duly  notified  of  non-pavuient.  Farr 
V.  Ricker,  46  O.  S.  265.  See  Titus  v.  Kyle,  10  O.  S.  444;  CollinsV.  Insurance 
Co.,  17  O.  S.  215;  Cummins  v.  Kent,  44  O.  S.  92;  Robinson  v.  Kanawha 
Bank,  44  O.  S.  441 :  Morris  v.  Faurot,  21  O.  S.  155.  Protest  is  the  formal 
declaration  of  the  notary,  but  includes  all  steps  necessarj*  to  charge  the  in- 
dorser, and  the  sufficiency  of  a  notice  in  writing  is  a  question  of  law ;  a 
simple  statement,  however,  that  the  paper  is  unpaid  does  not  show  present- 
ment and  demand.  Townsend  v.  Bank,  2  O.  S.  315.  The  notary  is  the  sub- 
agent  for  the  owner  of  domestic  paper  left  with  a  bank  for  collection,  and 
not  of  the  bank,  and  the  latter  is  not  liable  for  the  default  of  the  notary. 
Bank  v.  Butler.  41  O.  S.  519;  Britton  v.  Niccolls,  104  U.  S.  757.  The  bank 
is  held  liable  where  it  employs  a  notary  by  the  year  and  takes  a  bond  from 
him.     Gearhart  v.  Boatman's  Savings  lust.,  38  Mo.  60. 

Sec.  28S.  Petition  for  recovery  on  lost  certificate  of  de- 
posit against  bank  before  due. — 

[Caption  and  formal  opening^ 

That  on  the day  of  ,  18 — ,  he  deposited  in  the  de- 
fendant bank  the  sum  of  dollars  and  received  from  said 

bank  a  certificate  of  deposit  of  which  the  following  is  a  true 
copy    \copy\    which   certificate    was   signed    by    the    proper 

officer  of  the  bank;  that  on  the  day  of  ,  IS — ,  at 

C,  Ohio,  he  lost  the  certificate  of  deposit  and  his  pocket- 
book  containing  the  same,  and  has  not  since  that  time 
seen  or  heard  of  either,  and  does  not  know  where  the  certifi- 
cate of  deposit  is;  that  he  immediately  notified  the  bank 
of  the  loss,  and  not  to  pay  the  certificate,  and  that  said  cer- 
tificate had  not  been  indorsed  by  him;  that  he  had  not,  in 
fact,  at  any  time  indorsed  the  certificate  of  deposit;  that  it 
was  in  the  same  condition  when  lost  as  when  received  by  him; 
that  he  had  not  in  any  manner  sold  or  transferred  the  same 
to  any  person,  and  that  the  certificate  had  not  been  presented 
for  payment  to  the  bank  by  any  one;  that  he  immediately  de- 
manded payment  from  the  bank  of  the  amount  of  the  deposit, 
which  was  by  the  bank  refused,  although  he  offered  to  receipt 


272  BANKS    AND    BANK   CHECKS.  [§  289. 

in  full  for  the  amount  of  money  and  against  the  certificate  of 
-deposit. 

Note. —  A  certificate  of  deposit  issued  by  a  national  bank  is  in  fact  a 
promissory  note.  Citizens'  Nat.  Bank  v.  Bro%vn.  45  O.  S.  39 ;  Howe  v.  Hark- 
ness,  11  O.  S.  U9;  Hunt  v.  Devine,  37  IIL  137;  Bellows  Falls  Bank  v.  Rut- 
land County  Bank.  40  Vt.  377.  And  where  it  has  been  lost  without  having 
been  indorsed,  suit  may  be  maintained  thereon  without  the  tender  of  indem- 
nity. Citizens'  Nat.  Bank  v.  Brown.  siq)''a.  See  Daniel's  Neg.  Inst.,  sec. 
1481;  SOreenL  Ev..  sec.  156;  Storv's  Promissory  Notes,  sec.  451;  Thayer  v. 
King,  15  Ohio,  242  ;  Lazell  v.  Lazelf.  12  Vt  143 ;  Aborn  v.  Bosworth,  1  R  L  401 ; 
Moore  t.  Fall,  42  Me.  450 ;  Depew  v.  Wheelau.  6  Blackf.  485.  Recovery  can- 
not be  had  where  the  paper  had  been  indorsed  before  it  was  lost.  Piutard  v. 
Packington,  10  John.  104.  Shute  v.  Pacific  Nat.  Bank.  136  Mass.  487,  holds  cer- 
tificates of  deposit  not  promissory  notes.  Demand  should  be  made  tliereon 
before  suit  according  to  some  cases.  Downes  v.  PlKjenix  Bank,  6  Hill,  297 ; 
Hunger  v.  Albanv  Citv  Nat.  Bank.  85  N.  Y.  580  ;  Paviie  v.  Gardner,  29  N.  Y. 
167 ;  Bellows  Falls  Bank  v.  Rutland  Couutv  Bank.  40  Vt.  377.  See,  also,  18 
Md.  330 ;  44  Iowa,  152  ;  41  N.  Y.  581 ;  8  Met."217.  No  right  of  action  accrues 
until  demand,  and  the  statute  of  limitation  would  not  begin  to  run  until 
so  made.  Howell  v.  Adams,  68  N.  Y.  314;  Boughton  v.  Flint,  74  N.  Y.  476; 
Bank  v.  Bank,  5  Hun.  605 ;  Girard  Bank  v.  Bank,  39  Pa.  St.  92 ;  Patterson 
V,  Poindexter,  6  W.  &  S.  227.  Indemnity  required.  Lamson  v.  Pfaff,  1 
Handy.  449.  See  Price  v.  Dunlap.  5  Cal.  483;  Randolph  v.  Harris,  28  Cal. 
561, 

Sec.  289.  Legal  status  of  checks. —  Bank  checks  have  be- 
come so  engrafted  into  commercial  law  as  to  have  become  a 
very  potent  instrument.  They  are  taken  and  given  with  such 
mutual  confidence  as  to  constitute  almost  a  cash  medium  — 
passing  through  many  hands  answering  the  purpose  of  pay- 
ment. It  is  highly  important,  therefore,  that  the  rights  and 
liabilities  of  parties  thereto  should  be  clearly  defined.  In  ad- 
dition to  what  has  been  before  stated,  a  little  further  inv^esti- 
gation  will  be  made  preceding  the  forms  on  this  particular 
subject.  Checks  are  subject  to  many  rules  which  regulate 
the  rights  and  liabilities  of  parties  to  bills  of  exchange, 
many  authorities  regarding  them  as  bills  of  exchange.'  While 
this  may  be  true  to  a  certain  extent,  there  are  some  points 
of  difference.  For  instance,  the  rights  and  obligations  of  par- 
ties to  a  check  differ  from  those  to  a  bill  of  exchange,  in  that 
the  drawer  of  a  check  is  the  principal  debtor,  and  is  not  dis- 
charged by  any  default  of  the  holder  in  making  presentment 
unless  he  suffers  some  substantial  injury .^     This  rule  has  its 

1  Morrison  v.   Bailey,  5  O.  S.  13 ;  art  v.  Smith,  17  O.  S.  82.     See  Min- 

Harker  v.  Anderson,  21  Wend.  373;  turn  v.  Fisher,  4  CaJ.  35;  In  re  Brown, 

Andrew    v.    Blachly,  11    O.   S.    89;  2  Story,  503;    Murray  v.  Judah,  6 

Chapman  v.  White,  2  Seld.  412.     See  Cowen,  484 

distinctions    made    in    5    O.   S.    18;        2  Stewart  v.  Smith,  17  0.  S.  86;  Mor- 

Voorhes  v.  Hesket,  1  G.  C.  C.  7 ;  Stew-  rison  v.  Bailey,  5  O.  a  18 ;  MuUick 


«h 


§  289.] 


BANKS   AND    BANK   CHECKS, 


273 


qualifications,  however.     To  charge  the  drawer  of  a  check 
the  holder  must  present  it  within  a  reasonable  time.^ 

Unlike  commercial  paper  generally,  checks  are  not  entitled 
to  grace,  but  are  payable  on  demand.^  Where  a  person  giv- 
ing an  antedated  check  subsequently  makes  an  assignment  for 
the  benefit  of  creditors,  and  the  check  is  paid  by  the  bank 
with  knowledge  of  the  assignment  but  without  knowledge 
that  the  check  has  been  antedated,  the  fact  that  the  bank 
knew  that  the  drawee  of  the  check  had  made  an  assignment 
is  sufficient  to  put  it  upon  inquiry  as  to  whether  or  not  the 
check  had  been  antedated.  Payment  under  such  circum- 
stances cannot  be  set  up  as  a  defense  by  the  bank.'^  A  bank 
check,  being  simply  a  written  order  of  a  depositor  to  his 
banker  to  make  a  certain  payment,  is  revocable  by  the  drawee 
before  its  presentation  for  payment  unless  accepted  or  certi- 
fied to  by  the  bank,  for  the  latter  has  otherwise  become  com- 


V.  Raclkisson.  28  Eng.  L.  &  Eq.  94 ; 
Smith  V.  Jones,  2  Bush,  103 ;  Woodin 
V.  Frazee,  6  J.  &  S.  190;  Bank  v. 
Alexander,  84  N.  C.  30.  Contra. 
Daniels  v.  Kyle.  5  Ga  245 ;  Marker 
V.  Anderson.  21  Wend.  370. 

1  Brauu  v.  Kimberlin,  9  Am.  L. 
Rec.  405;  Work  v.  Bnnk.  8  O.  S.  301. 
What  is  a  reasonable  time  must  de- 
pend on  circumstances.  Id.  See, 
also,  Davis  v.  Benton,  2  W.  L.  ]VL  434. 

2R.  S.,  sec.  3175;  Morrison  v.  Bai- 
ley, 5  O.  S.  13;  Stewart  v.  Smith,  17 
O.  S.  82;  8  O.  S.  301;  11  O.  S.  89. 
Payment  should  be  demanded  on  the 
day  subsequent  to  its  date  (13  Wend. 
133;  20  Wend.  192;  4  B.  &  A.  752); 
and  the  holder  has  the  whole  of  the 
banking  hours  of  the  next  day  within 
which  to  present  it.  2  Taunt.  388 ;  2 
Camp.  537;  4  B.  &  A  753;  Story  on 
Notes,  sec.  493.  Checks  made  payable 
on  a  certain  day,  or  which  are  post- 
dated, are  not  to  be  regarded  as  bills 
of  exchange  or  subject  to  the  formal- 
ity of  presentment  or  notice  required 
in  commercial  bills  generally.  The 
18 


rule  as  given  is  not  varied  as  to 
such  bill,  the  holder  being  entitled  to 
hold  it  until  the  close  of  banking 
hours  on  the  day  next  after  its  data 
Blachly  v.  Andrew,  1  Disn.  78.  A 
draft  for  money  in  the  usual  form  of 
a  check,  but  payable  on  a  future 
specified  day.  and  designed  to  be  an 
absolute  transfer  or  appropriation  to 
the  holder  of  so  much  money,  will  be 
regarded  as  a  check  and  not  a  bill  of 
exchange  and  therefore  not  entitled 
todays  of  grace.  Andrew  v.  Blachly, 
11  O.  S.  89;  1  East.  435;  10  Wend. 
304;  20  Wend.  205.  A  holder  of  a 
check  is  entitled  to  wait  uutil  the 
day  following  its  date  before  pre- 
senting it  to  the  drawee  without  dis- 
charging the  drawer  from  liability. 
So  a  warrant  taken  from  a  clearing- 
house in  lieu  of  a  check  which  is 
after%vards  dishonored  will  not  be 
considered  payment  of  the  check,  and 
the  drawer  of  the  check  will  be  liable 
thereon.  Merchants"  Bank  v.  Proctor, 
1  C.  S.  C.  R.  1. 
3  Chaffee  v.  Bank,  40  O.  S.  1. 


274  BANKS    AND    BANK    CHECKS.'  [§289, 

mitted  to  its  payment.  A  mere  giving  out  of  information 
by  a  bank  that  a  person  has  on  deposit  a  certain  amount  of 
money  will  not  constitute  an  acceptance  or  certification  of  the 
check,  or  otherwise  create  an  obligation  on  the  bank  to  pay 
checks  which  an  inquirer  may  then  hold.^ 

Checks  being  placed  substantialh''  in  the  same  category  with 
bills  and  notes,  the  same  rules  apply  where  they  are  signed  by 
a  person  as  agent  without  in  any  way  indicating  the  name  of 
the  principal,  the  party  signing  as  agent  being  himself  liable.'^ 
Nor  can  a  drawer  of  a  check  make  a  defense,  as  in  the  case  of 
bills,  that  no  presentment  or  notice  was  given.  Delay  in  pre- 
senting checks  cannot  be  pleaded  as  a  defense  unless  the  fund  is 
in  some  way  lost  in  the  meantime.''  There  is  no  liability  on 
memorandum  checks  exchanged  by  parties  for  their  mutual 
accommodation  until  paid;^  but  where  parties  have  exchanged 
checks  upon  the  same  bank  for  the  same  amount,  one  of  whom 
tranferred  his  check  to  a  creditor  as  collateral,  it  will  not  be 
considered  accommodation  paper,  and  the  person  to  whom  it 
was  pledged  may  recover  the  amount.*  In  such  cases  the 
paper  is  founded  on  a  valuable  consideration,  being  a  mutual 
promise  for  the  benefit  of  each  other.^ 

A  check  operates  as  an  assignment  j?/'(?  tanto  of  the  fund  on 
which  it  is  drawn,  and  binds  the  bank  to  its  payment  out  of 
the  fund  when  presented.  It  is  not  payment  of  a  debt  for 
which  it  is  drawn  unless  it  be  so  agreed  between  the  parties, 
and  the  debt  will  not  be  extinguished  unless  the  check  is  paid 
or  the  holder  guilty  of  neglect  which  may  operate  as  a  dis- 
charge of  the  drawee."  Where  a  check  is  given  in  payment 
of  taxes  but  is  not  presented  on  the  next  day  after  its  receipt 
by  the  treasurer,  and  the  bank  upon  which  it  is  drawn  fails, 
such  check  will  not  be  considered  payment.     The  ordinary 

1  Kahn  t.  Walton,  46  O.  S.  195.  5  Rankin  v.  Knight,  1  C.  S.  C.  R. 

2  Anderson  v.  Sharp.  17  O.  S.  126;     515. 

5  Gray,  561 ;  11  Mass.  27 :  8  Met.  443 ;  « Id. ;   Cowley  v.  Dunlop,   7   T.  R. 

10  Wend- 276.  565;  Buckler  v.   Brettivant,  3  East, 

3  McGregor  v.  Loomis,  2  Disn.  251 ;  72 ;  Eaton  v.  Carey,  10  Pick.  214 ;  Dowe 
2  Hill.  425.  If  the  drawer  have  no  v.  Schutt,  2  Denio,  623 ;  Whittier  v. 
funds  in  the  bank  he  cannot  com-  Eager,  1  Allen,  499;  Higginaon  v. 
plain.  Fletcher  v,  Pierson.  69  Ind.  Gray,  6  Met  218;  Trustees  v.  Hill, 
281 ;  Culver  v.  Marks,  122  Ind.  554.  12  Met.  462. 

*Burdsall  v.  Chrisfield,  1  Disn.  51.        'Kahn  v.  Walton,  46  O.  &  195. 


§  290.]  BANKS   AND   BANK    CHECKS.  275 

rule  will  not  apply  as  against  the  state,  and  on  account  of  the 
crowded  state  of  business  such  non-presentment  will  not  con- 
stitute a  defense.^  It  may  serve  as  a  good  tender  of  pay- 
ment where  the  parties  waive  all  objections.-  A  check  given 
in  payment  of  money  lost  at  gaming  being  void,  an  indorsee 
cannot  recover  the  same  from  the  drawee.^  It  will  not  operate 
as  a  gift  unless  accepted  or  paid.^  A  check  being  considered 
a  mere  chose  in  action  and  not  a  transfer  of  the  fund  unless 
accepted,^  a  third  person  may  therefore,  before  the  same  is  pre- 
sented, attach  the  funds  of  the  bank,  as  the  bank  is  only  a  debtor.' 

Sec.  290.  Petition  of  payee  against  drawer  of  check. — 

\_Caption  and  formal  opening^ 

There  is  due  the  plaintiff  from  the  defendant  company,  as 
drawer,  the  sum  of dollars,  which  he  claims  with  inter- 
est from  the day  of ,  18—,  on  a  bank  check,  of  which 

the  following  is  a  copy  of  all  credits  and  indorsements  thereon, 
to  wit:  [6<9j92/.]  Payment  of  said  check  was  duly  demanded 
at  said  bank  at  maturity,  but  defendant  had  no  funds  at  said 

bank,  and  the  same  was  not  paid ;  but  on  the  day  of 

,  18 — ,  said  bank  paid  the  sum  of dollars  only,  and 

the  balance  was  not  paid  for  the  reason  that  the  defendant 
had  no  funds  at  said  bank,  and  was  not  paid,  of  all  of  which 

defendant  had  due  notice  \or^  that  on  the  day  of , 

18 — ,  said  check  was  duly  presented  to  said  bank  for  pay- 
ment, but  was  not  paid,  and  thereupon  plaintiff  demanded  of 
the  defendant  that  he  pay  the  same,   which  was  refused]. 

There  is  now  due  on  said  check  a  balance  of dollars  with 

interest  from ,for  which  amount  demand  was  duly  made 

[or,  that  no  part  thereof  has  been  paid,  and  there  is  now  due 

from  the  defendant  to  the  plaintiff  thereon  the  sum  of 

dollars]. 

Wherefore  plaintiff  asks  judgment  against  the  said  defend- 
ant in  the  sum  of dollars  with  interest  from  the day 

of ,  18—.  ^ 

Note.—  From  Frey  v.  Gragg,  unreported  case,  S.  C,  No.  1646.  It  is  held 
that  in  an  action  against  a  drawer  of  a  check  it  should  be  averred  that  de- 
mand and  notice  of  non-payment  to  the  drawer  has  been  made.  Insurance 
Co.  V.  Coons,  35  Iowa,  364;  Shultz  v.  Dupuy,  3  Abb.  Pr,  252;  Judd  v. 
Smith,  3  Hun,  190.  But  see  ante,  sec.  289,  If  the  drawee  is  insolvent,  as 
against  the  drawer  it  is  immaterial  or  not  necessary  to  make  presentment 
and  give  notice.     Lovett  v.  Cornwell,  6  Wend.  369. 

Consideration.—  It  is  not  necessary  to  aver  consideration,  as  the  check 
imports  it.     McClain  v.  Lowther,  35  W.  Va.  397. 

1  Mauck  V.  Fratz,  4  W.  L.  B.  1044.        <  Simmons  v.  Savings  Society,  41 

2  Jennings  v.  Meudenhall,   7  O.   S.     O.  S.  457. 

2^^-  5  Cain  V.  Bank.  107  Mass.  45;  Bank 

3  Bank  v.  Portner,    46    O.  S.  381 ;     v.  Bank,  46  N.  Y.  82. 

P.  S.,  sec.  4269.  « Imboden  v.  Perrie,  13  Lea,  504. 


276 


BA.NK3    AND   BA.N"K   CSE0K3. 


[§§  291-293. 


Sec.  291.  Petition  by  indorsee  aa:ainst  drawer. — 

Plaintiff  savs  that  on  the  dav^  of  ,  18 — ,  the  de- 


fendant drew  his  check  in  writing  upon  the  First  National 
Bank  of  C,   Ohio,   thereby  directing  said   bank   to  pay  to 

the  order  of the  sum  of  dollars,  of  which 

the  following  is  a  copy,  to  wit:  [Copy.']  That  the  said  J.  S. 
indorsed  said  check  to  Ihis  plaintiff  as  follows :  [Copy.']  Plaint- 
iff presented  said  check  to  said  bank  for  payment,  which  was 
refused,  due  notice  of  which  was  given  said  defendant.  Plaint- 
iff thereupon  demanded  payment  of  said  defendant,  but  he  has 
wholly  failed  and  refused  to  pay  the  same. 

Wherefore  plaintiff  asks  judgment  against  said  defendant 
for  the  sum  of  $ ,  etc. 

Note.— See  note  in  ante.  sec.  287.  As  to  rig^ht  of  recovery  by  indorsee 
against  drawer  when  delay  has  been  made  in  presenting  check  and  bank 
has  failed  in  meantime,  see  Hamilton  v.  Salt  &  Lumber  Co..  54  N.  W.  Rep. 
903  (Mich.,  1893). 

Sec.  292.  Petition  of  drawer  against  drawee. — 

[Caption  and  formal  opening.] 

That  on  the day  of ,  IS— ,  the  plaintiff  had  on  de- 
posit in  the  defendant's  bank dollars,  subject  to  any  check 

he  might  draw  thereon. 

That  on  said  day  he  drew  his  check  on  said  defendant  re- 
questing him  to  pay  C.  or  order dollars. 

That  said  C.  indorsed  the  said  check  to  K.,  who  indorsed 
the  same  to  L. 

That  rn  the day  of ,  18 — ,  and  while  said  sum  of 

monev  was  still  on  deposit  in  said  bank,  said  L.  presented 
said  check  during  banking  hours  to  the  defendant  for  payment, 
which  was  refused,  whereby  plaintiff  was  compelled  to   pay 

the  same,  to  his  damage  in  the  sum  of dollars,  for  which 

he  demands  judgment. 

Note.— A  bona  fide  holder  of  a  check  has  a  right  of  action  against  the 
drawee  in  case  pavment  is  refused  when  the  drawer  has  sufficient  funds 
on  deposit.     McGregor  v.  Loomis.  1  Disn.  247,  248.     See  sec.  2.  ante. 

Sec.  293.  Certified  cliecks  and  form  of  petition.— The 

certification  of  a  check  does  not  completely  change  its  char- 
acter. It  produces  a  different  relation  between  the  original 
parties ;  the  drawee  ceases  to  be  the  debtor  of  the  drawer,  but 
it  remains  an  order  for  payment,  and  operates  in  favor  of 
third  parties  merely  as  an  assurance  that  it  is  genuine  and 
will  be  paid.  It  makes  a  difference,  however,  upon  whose  re- 
quest the  same  is  certified.  If  a  holder  instead  of  presenting 
a  check  for  payment  procures  the  bank  upon  which  it  is 
drawn  to  certify  it  as  a  claim  or  demand  upon  the  bank,  or 


I  293.]  BANKS  AND  BANK  CHECKS.  277 

puts  it  into  circulation,  the  drawer  will  be  released.^  But  if 
a  drawer  causes  his  check  to  be  certified  before  it  leaves 
his  hands,  it  does  not  discharge  him  from  liability  to  the 
holder  thereon  if  the  same  is  duly  presented  for  payment  and 
notice  given  of  its  non-payment.-  It  becomes  substantially 
a  certificate  of  deposit  in  the  holder's  hands,  and  the  fund 
ceases  to  be  under  the  control  of  the  depositor.  The  party 
accepting  the  check  does  not  take  the  risk  of  the  solvency  of 
the  bank,  as  acceptance  of  a  certified  check  does  not  constitute 
payment  any  more  than  does  an  ordinary  check,^  the  person 
receiving  it  simply  as  an  additional  security  for  payment,  and 
if  it  is  presented  within  due  time,  payment  refused  and  due 
notice  given  to  the  drawer,  he  cannot  complain,^  A  certifi- 
cate that  a  check  "  is  good  "  is  equal  to  an  acceptance  thereof.' 
A  bank  certifying  a  check  certifies  the  genuineness  of  the 
drawer's  signature  and  that  it  has  funds  with  which  to  meet 
it,  but  does  not  warrant  the  genuineness  of  the  body  of  the 
check  as  to  the  payee  or  the  amount  secured.^  A  petition 
against  a  bank  upon  a  certified  check  may  be  in  the  following- 
form: 

[Captio/'i.'] 

Plaintiff  says  that  defendant  is  a  corporation  duly  organized 
as  a  national  bank  under  the  laws  of  the  United  States  and 

located  at  C,  Ohio;  that  on  the day  of ,  18 — ,  Jno. 

Doe  made  delivery  to  the  plaintiff  of  a  check  of  which  the 

iBorn  V.  Bank,  123  Ind  78;  Cin-  N.   Y.   211.     See  14  Am.   Rep.   232; 

ciunati  Oyster  Co.  V.  Bank,  4  O.  C.  C.  56    Mo.    503;     89     N.    Y.    418.      It 

135;   affd,   51    O.    S.   — ;    Bank  v.  amounts  to  an   acceptance   by  the 

Leach,  52  N.  Y.  350;  Bank  v.  Jones,  bank  (Barnes  v.  Bank,  19  N.  Y.  159; 

12  L.  R  A.  492 :  27  N.  E.  Rep.  533 ;  Simpson   v.   Insurance  Co.,  44  Cal. 

Bank  v.  Cornhauser,  37  111.  App.  475.  139;  Bank  v.  Leach,  52   N.  Y.   350; 

-  Cincinnati   Oyster   Co.   v.  Bank,  Meads  v.  Bank,  25  N.  Y.  146 ;  82  Am. 

supra.  Dec.  331),  thereby  binding  itself  to 

3  Barr  v.  National  Bank,  24  W.  L.  B.  hold  the  necessary  funds  for  its  pay- 
260  (Ind.).  ment.     Bank  v.  Butchers,   16  N.  Y. 

4  Morse  on  Banking,  sees.  414-416 :  125:  65  Am.  Dec.  678;  Rounds  v. 
52  N.  Y.  350;  42  111.  238;  43  111.  497;  Smith.  42  111.  245.  The  bank  becomes 
82  N.  Y.  1.  in  fact  the  principal  debtor  and  the 

s  Nolan  V.  Bank,  67  Barb.  24 ;  Bank  drawer  is  discharged.  Bank  v.  Leach, 

V.  Leach,  52  N.  Y.  350;  Simpson  v.  52  N.  Y.  350;  Bank  v.  Whitman,  94 

Insurance  Co.,  34  Cal.  139.  N.  Y.  343.    A  certificate  of  deposit  is 

6  Bank  v.  Bank,  67  N.  Y.  458 ;   Ma-  regarded  as  a  negotiable  promissory 

rine  Bank  v.  Bank,  59  N.  Y.  67 ;  Na-  note.     Citizens"  Bank  v.    Brown,  45 

tional   Bank   v.    National   Bank,   55  O.  S.  39. 


278  BANKS    AND    BANK   CHECKS.  [§  294:. 

following  is  a  copy  with  all  the  indorsements  thereon,  to  wit: 
[Copy.] 

That  on  the day  of ,  18 — ,  the  plaintiff  presented 

said  check  to  the  said  defendant,  who  by  its  duly  authorized 
agent  accepted  the  same  in  writing  and  certified  the  same  to 
be  good,  which  certification  is  in  the  following  words,  to  wit : 
[  Copy  of  a  ccep  ta  1 1  ce .  ] 

That  plaintiff  presented  said  check  to  the  said  defendant 
bank  and  demanded  payment  thereof,  which  was  refused,  and 
there  is  now  due  thereon  from  the  said  defendant  to  the 
plaintiff  the  sum  of dollars. 

Wherefore  plaintiff  asks  judgment  against  the  defendant,  etc. 

Sec.  291.  Answer  tliat  certified  check  was  a  forgery. — 

[Caption.'] 

That  it  admits  that  it  certified  the  check  sued  on  in  this 
action,  but  alleges  that  said  check  was  a  forgery  in  this :  That 

it  was  drawn  by  R  F.  for  the  sum  of dollars,  but  it  was 

altered  and  changed  by  some  one  unknown  to  defendant  by 
raising  said  sum  of dollars  to dollars. 

That  defendant  had  no  knowledge,  at  the  time  it  certified 
said  check,  that  the  same  had  been  altered,  but  discovered  the 
same  afterward. 


I 


CHAPTER  22. 


BILLS  AND  NOTES. 


Sec.  295.  Parties  to  actions  on  notes 
and  bills. 

296.  Petition  on  notes  and  bills- 

General  rules. 

297.  Consideration  — Rules  of 

pleading. 

298.  Bona  fide  holders  — Eights 

of. 

299.  Indorsement. 

300.  Pleading  demand  and  no- 

tice. 
801.  Action  by  indorsee  or  holder 
against  maker,  drawer  or 
indorser. 

BILLS  OF  EXCHANGE  — FORMS  OF  PE- 
TITIONS. 
Sec.  303.  Petition  by  indorsee  against 
acceptor,  drawer  and  in- 
dorser. 
303.  Petition  by  acceptor  against 

drawer. 
304  Petition  against  maker  for 
non-acceptance. 

305.  Petition  showing  excuse  for 

non-presentment  of  bill  to 
drawee. 

306.  Petition  when  demand  and 

notice  are  waived. 

307.  Allegation    where    drawee 

could  not  be  found. 

308.  Petition  by  drawer  against 

drawee  on  promise  to  ac- 
cept. 

309.  Petition  on  a  stolen  draft. 

NOTES  —  FORMS  OF  PETITIONS. 
Sec.  310.  Petition  against  maker  only. 
311.  Petition    on    note    against 
maker  and  indorser. 


Sec.  312.  Petition  against  maker  and 
indorsers  —Averring  pre- 
sentment, etc. 

313.  Petition  against  maker,  in- 
dorser and  guarantor. 

314.  Simple  form  of  petition  by 
indorsee  of  note  for  value. 

315.  Petition  by  indorsee  against 
indorser  in  case  of  failure 
to  give  notice  for  want 
of  funds. 

316.  Petition  by  purchaser  for 
value  against  administra- 
tor of  deceased  maker  and 
indorsers  of  note. 

317.  Petition  by  payee  of  note 
against  executor. 

318.  Petition  by  indorsee  against 
indorser  without  recourse 
who  warranted  a  forged 
instrument 

319.  Petition  by  bank  as  assignee 
for  value  on  note  of  cor- 
poration. 

320.  Petition  on  note  wrongly 
dated. 

331.  Petition  for  instalment  due 
on  note. 

332.  Petition  for  interest  due  on 
note. 

333.  Petition  on  notes,  and  to 
correct  error  in  account- 
ing thereon. 

324.  Petition  by  partnership 
against  partners  as  mak- 
ers and  indorsers. 

325.  Petition  by  surviving  part- 
ner against  a  firm  on  note. 

326.  Petition  by  payee  against 
surviving  partneron  nota 


280 


BILLS   AND   NOTES. 


[§  295. 


Sec.  327,  Actions  on  lost,  destroyed 
or  stolen  instruments, 
with  form  of  petition. 

DEFENSES. 

Sec.  328.  Answers  to  actions  on  notes 

and  bills — General  rules. 

329.  Defense  when  indorsed  or 

delivered  before  maturity. 

830.  Defense  when  indorsed  or 

delivered  after  due. 
331.  Defenses — Failure  of  con- 
sideration. 

ANSWERS  —  FORMS  —  BILLS. 

Sec.  332.  Answer  of  unauthorized  ac- 
ceptance. 

333.  Answer  of  payment  before 

indorsement. 

334.  Answer  of  acceptance  for  ac- 

commodation of  plaintiff. 

ANSWERS  —  FORMS  —  NOTES. 

Sea  335.  Answer  denying  obligation 
as  maker,  claiming  that  of 
accommodation  indorser. 
836.  Answer  of  indorser  setting 
up  verbal  agreement  as  to 
indorsement 


Sec  337.  Answer  denying  execution, 
and  setting  up  want  of 
consideration  —  A  mere 
gift, 

338.  Answer  that  note  was  pur- 

chased with  notice  that 
it  was  accommodation 
paper. 

339.  Answer    of  want  of  con- 

sideration by  reason  of 
failure  of  title  to  property. 

340.  Answer  that  note  vvas  given 

for  gambling. 

341.  Answer  that  consideration 

was  for  a  patent-right. 

342.  Alteration  of  notes. 

343.  Answer  denying  execution 

of  note;  that  it  was  al- 
tered after  execution  by 
payee. 

344.  Answer  that  note  was  al- 

tered by  the  addition  of  a 
name. 

345.  Reply  that  note  was  pur- 

chased in  usual  course  of 
business. 


Sec.  295.  Parties  to  actions  o:i  notes   and  bills. —  The 

code  requires  that  actions  should  be  brought  in  the  name 
of  the  real  owner  or  party  in  interest,  whether  his  title  be 
legal  or  equitable,  and  that  ownership  should  fully  appear  in 
the  petition.^  Makers  and  indorsers  may  be  joined  in  one 
action,  but  the  facts  showing  their  liability  must  be  stated,^ 
In  an  action,  however,  by  an  indorsee  of  a  note  or  bill,  it  is 
not  generally  considered  necessary  to  make  a  specific  allega- 
tion showing  the  relationship  of  parties,  as  that  appears  fully 
from  the  copy  incorporated  in  the  petition,  although  it  is 
largely  a  matter  of  taste.  The  holder  of  a  note  as  collateral 
^  security  is  the  real  party  in  interest  and  may  bring  an  action 
^  in  his  own  name ; '  and  where  a  note  has  been  assigned  to 


'  R  S,,  sec.  4993 ;  ante,  sec,  8 ;  Max- 
well on  Code  Pldg.  95 ;  Bliss  on  Code 
Pldg,,  sec.  233.     See  post,  sec.  296. 


2  Maxwell  on  Code  Pldg.  128-9. 
SHerron    v.    Cole,   25    Neb.     692; 
Williams    v.    Norton,    8  Kan.   295; 


§  295.]  BILLS    AND    NOTES.  281 

another  for  collection  merely,  suit  may  be  brought  by  such 
party  as  the  real  party  it  interest,  although  the  only  interest 
which  he  may  have  is  his  compensation  for  collection.'  An 
agent  to  whom  paper  is  indorsed  for  collection  may  bring  suit 
if  his  indorser  could  have  maintained  an  action  thereon,  al- 
though he  is  bound  to  account  to  the  payee  for  the  proceeds.- 
And  an  indorsee  of  a  promissory  note  may  sue  the  indorser 
before  suing  the  makers,  the  latter  not  being  necessary  parties 
to  the  suit :  ^  or  an  agent  may  bring  an  action  in  his  own  name, 
if  he  has  possession  and  the  legal  title  at  the  time,  although 
the  note  be  indorsed  to  another.^  Where  a  note  is  made  by 
consent  of  all  parties  to  one  in  trust  for  others,  such  person 
may  sue  without  joining  the  remainder,  even  though  he  be  a 
trustee,  and  if  the  note  is  made  to  him  in  his  individual  name 
he  need  not  sue  in  his  representative  capacity;^  or  a  note 
payable  to  the  president  of  a  bank  may  be  sued  on  by  him 
alone  as  trustee  of  an  express  trust.^  Where  the  payee  of  a 
note  has  possession  of  it,  he  may  strike  out  an  indorsement 
thereon  by  him  and  maintain  an  action  in  his  own  name 
without  a  re-assignment."  The  payee  of  a  note  who  trans- 
fers it  by  writing  his  name  on  the  back,  guarantying  its  pay- 
ment, may  be  sued  jointly  with  the  maker.''  The  holder  or 
payee  of  a  check  cannot  maintain  an  action  in  his  own  name 
against  the  drawee  when  the  same  has  not  been  accepted.' 
Under  the  provision  of  the  code  that  an  action  must  be 
brought  in  the  name  of  the  real  party  in  interest,  a  defense 

Van  Eman  v.  Stanchfield,  13  Minn.  v.    Norton,   3  Kan.    295 ;  Beattie  v. 

75 ;  Wetmore  v.  San  Francisco,   44  Lett,  28  Mo.  596. 

Cal.  294.  3  McGhee   v.   Bank.   93    Ala.    192 ; 

1  See  aiite,  sec.  8 :  White  v.  Stan-  Corbin  v.  Bank,  87  Va.  661. 
ley,  29  O.  S.  423;  Allen  v.  Brown,  44  ^Smead  v.  Fay,  1  Disn.  531. 

N.  Y.  228;  Meeker  v.  Claghorn,  44  f"  Scantlin  v.  Allison.  12   Kan.  85; 

N.  Y.  349 :  Eaton  v.  Alger,  47   N.  Y.  Nicolay  v.  Fritschel,  40  Mo.  67.     See 

345;  Hays  v.  Hathorn,  74  N.  Y.  486:  ante,  sec.  9. 

Curtis  V.  Sprague,51  Cal.  239;  Smead  6  Wolcott  v.  Standley.  62  Ind.  19a 

V.  Fay,  1  Disn.  531 ;  Hardin  v.  Helton,  ^  Spencer  v.   Carstarphen,  15  Colo. 

50  Ind.  319.  445;  24  Fac.  Rep.  882  (1890). 

2  Wintermute  v.  Torrent,  83  Mich.  ^  Kautzman   v.    Weirick,   26  O.  S. 
555;  Moore   v.   Hall,   48   Mich.  143;  330. 

Eaton  V.  Alger,  47  N.  Y.  345 ;  Webb        '•>  Boettcher  v.  Bank,  15  Colo.  16 ;  24 
V.  Morgan.  14  Mo.  428:  Wetmore  v.     Fac.  Rep.  582  (1890). 
San  Francisco,  44  Cal.  294  ;  Williams 


282  BILLS   AND   NOTES.  [§  296. 

that  one  of  the  parties  has  assigned  his  interest  is  available 
only  by  an  answer  denying  such  interest.^  An  action  cannot 
be  maintained  against  both  principal  and  agent  where  it  is 
claimed  that  the  maker  of  a  note  acted  as  agent  in  its  exe- 
cution.'^ 

See.  396.  Petition  on  notes  and  bills  —  Oeneral  rules. — 
In  framing  a  petition  under  the  code  in  an  action  on  a  prom- 
issory note  or  bill  of  exchange,  a  copy  of  the  note  with  all 
the  credits  and  indorsements  thereon  should  be  incorporated 
in  the  petition  or  attached  thereto.'  It  is  considered  unnec- 
•essary,  when  there  are  no  indorsements,  to  so  aver,  although 
it  is  the  better  practice  to  do  so ;  *  nor  is  an  omission  to  state 
that  all  the  credits  are  given  in  the  copy  fatal.^  If  the  short 
form  prescribed  by  section  5086  of  the  code  be  adopted,  it  is 
only  necessary  to  state  that  there  is  due  upon  the  note  a 
specified  sura.*  When  others  than  the  makers  of  a  note  or 
acceptors  of  a  bill  are  parties,  the  facts  which  fix  their  liability 
should  be  stated."^  Thus,  under  this  statute,  in  an  action  by 
an  indorsee  of  a  note,  it  is  sufficient  merely  to  frame  the  pe- 
tition in  the  usual  form,  giving  a  copy  of  the  note,  as  title 
or  ownership  is  implied  from  an  allegation  that  there  is  due 
a  specified  sum.^  A  petition  which  merely  avers  the  execu- 
tion of  a  note  and  gives  a  copy  thereof  shows  a  promise  to 
pay.^  And  so,  if  a  note  is  made  part  of  a  petition,  it  is  im- 
material whether  it  be  averred  that  the  same  is  payable  to 
plaintiff."    Merely  averring  ownership  in  the  plaintiff  without 

iHauna  v.  Ingram,  93  Ala.  482;  L.  M.  420;   Swan's  P.   &  P.    184-6. 

9  S.  Rep.  621  (1891).  This  is    the    construction  given   to 

2  Bank  v.  Turner,  24  N.  Y.  S.  794.  similar  provisions  in   the  codes  of 

3  See  ante,  sees.  57,  58,  where  this  other  states.  Prindell  v.  Carruthers, 
is  fully  discussed.  1 H  N.  Y.  425 ;  Bank  v.  Jacobson,  15 

4  Ives  V.  Strickland,  4  W.  L.  B,  852.  Abb.  Pr.  218.  It  is  held  in  California 
6  Ingersoll  v.  Craw,  1  Clev.  Rep.  1.  that  an  averment  that  there  is  a  cer- 
6  R.   S.,   sec.   5086 ;    ante,    sec.   57.     tain  amount  due  upon  a  note  is  a 

Plaintiff  must  show  what  sum  there  mere  conclusion  of  law.    Frisch  v. 

is  due  before  a  defendant  can  be  Caler,  21  Cal.  71 ;  Davanay  v.  Eggen- 

called  upon  to  deny.    Villers  v.  Lewis,  hoff,  43  Cal.  395.    Title  may  be  stated 

1  Handy,  39.  by  alleging  that  plaintiff  owns  the 

f  R.  S.,  sec.  5086 ;  ante,  sec.  57.  note.     Insurance    Co.   v.   Goodin,   1 

8  Sargent  v.  Railroad  Co.,  32  O.  S.  Handy,  31. 

449;  Bank  v.  Jacobson,  15  Abb.  Pr.  »  Reynolds  v.  Baldwin,  93  Ind.  57. 

218.   See  Ohio  Life  Ins.  Co.  V.  Goodin,  w  Jaqua  v.  Woodbury,  3  Ind.  App. 

1  Handy,  31 ;  Meyers  v.  Miller,  2  W.  289 ;  29  N.  E.  Rep.  673  (1892> 


§  296.]  BILLS    AND    NOTES.  2S3 

setting  forth  indorsements  or  otherwise  showing  title  will  not 
be  sufficient.*  An  allegation  that  a  note  was  made  to  the 
plaintiff  is  a  sufficient  averment  of  ownership  without  alleg- 
ing delivery;'  and  so  with  an  averment  that  a  payee  of  a 
note  sued  on  indorsed  it  to  plaintiff  hy  writing  his  name  on 
the  back.^  A  defendant  may  prove  that  the  plaintiffs  are 
not  the  owners  of  a  note,  even  where  there  is  no  such  issue 
made  by  the  plaintiffs  in  the  case.*  A  failure  to  allege  that 
an  indorsement  and  delivery  of  a  note  was  for  value  and  be- 
fore maturity  is  not  ground  for  a  demurrer.*^ 

Where  a  note  or  bill  has  been  dishonored  it  is  necessary  to 
state  that  fact  in  the  petition;  and  in  an  action  against  the 
maker  and  indorser  of  a  note,  an  allegation  that  the  same  was 
presented  at  maturity  to  the  maker  for  payment  but  was  un- 
paid, due  notice  of  which  was  given  to  the  indorser,  is  a  suffi- 
cient allegation  of  presentment,  refusal  and  notice,^  Or  in  an 
action  by  an  indorsee  against  an  indorser  of  a  bill,  an  allega- 
tion that  the  same  was  presented  to  the  drawee  "  for  accept- 
ance and  was  then  and  there  by  him  declined  and  refused 
acceptance,  and  not  accepted,"  is  a  sufficient  averment  of  de- 
mand of  acceptance;''  but  an  averment  that  a  note  was  pro- 
tested is  not  equal  to  an  averment  that  it  had  been  duly 
presented  to  the  maker  for  payment  and  that  payment  was 
refused.^  And  so  where  it  is  claimed  that  demand  and  notice 
have  been  waived  it  is  equally  essential  that  the  facts  con- 
stituting such  waiver  be  fully  set  forth,  as  proof  of  waiver 
cannot  be  admitted  under  a  general  allegation  of  presentment 
and  notice  of  dishonor.^  Where  it  is  necessary  that  an  accept- 
ance of  a  bill  or  guaranty  should  be  in  writing,  a  mere  aver- 
ment that  the  bill  was  accepted,"  or  that  the  guaranty  was 

1  Gould  V.  Insurance  Co.,  8  W.  K  B.  5  Rubelman  v.  McNichol,   13  Mo. 

281.  App.  584. 

'■i  Keteltas  v,  Meyers,  19  N.  Y.  233 ;  6  Young  v.  Miller,  68  Cal.  803 ;  Fisk 

24  N.  Y.  547 ;  12  How.  Pr.  452,  460.  v.    Miller,   63   CaL   367 ;    Spencer  v. 

3  Rubelman   v.   McNichol,    13  Mo.  Locouiotive  Works,  17  Abb.  Pr.  110. 

App.  584  7  Bank  v.  Hatch,  78  Mo.  13. 

*  Russell   V.   Gregg,    49    Kan.   89 ;  8  Pi-jce  v.  McClare,  3  Abb.  Pr.  253. 

80  Pac.   Rep.   185  (1892).    It  is  not  « Pier  v.  Heinrichoffen,  52  Mo.  333- 

necessary  to  allege  that  a  note  was  336. 

delivered.     Keesling  v.   Watson,   91  'O  Bank  v.  Edwards,  11  How.  Pr. 

Ind.  578;  Doane  v.  Duulap,  Tap.  llo.  216. 


284  BILLS    AND    NOTES.  [§  297. 

made,^  without  stating  that  it  was  accepted  or  made  in  writ- 
ing, will  be  sufficient,  as  it  will  be  implied  from  the  mere 
allegation  that  it  was  in  writing.  It  should  not  only  appear 
that  there  was  a  promise  made  but  that  it  was  broken,^ 
though  an  averment  that  there  is  due  and  owing  a  certain 
sum  of  money  is  generally  conceded  to  be  a  sufficient  allega- 
tion as  to  non-payment;^  and  so  with  an  allegation  that  no 
part  of  a  note,  principal  or  interest,  has  been  paid.'*  But  a 
petition  will  not  be  held  insufficient  if  it  fails  to  aver  that  a 
note  is  due  at  the  commencement  of  the  action  if  the  copy 
embodied  in  the  petition  by  its  terms  shows  that  it  fell  due 
before  the  same  was  filed.'  An  allegation  which  states  that 
only  part  of  the  principal  sum  demanded  still  remains  due  and 
unpaid  is  insufficient  to  sustain  a  judgment.®  But  failure  to 
allege  that  some  part  is  due  and  unpaid  is  a  defect  which  will 
vitiate  a  judgment  by  default.' 

See.  297.  Consideration  —  Rules  of  pleading. —  It  is  well 
understood  that  a  promissory  note  imports  consideration, 
and  hence  it  is  unnecessary  in  an  action  thereon  to  aver  that 
the  same  is  founded  on  a  valuable  consideration.®  And  so  a 
description  of  a  note  in  a  pleading  is  sufficient  without  an 
averment  of  consideration.^  Consideration  is  likewise  pre- 
sumed from  indorsement  and  delivery,  rendering  it  unneces- 
sary in  an  action  by  the  holder  against  an  indorser  to  state 
that  the  note  was  transferred  for  a  valuable  consideration, 
as  that  would  be  matter  of  defense  to  be  set  up  in  the 
answer.^^  An  averment  that  a  guarantor  is  liable  both  as  an 
indorser  and  guarantor  implies  a  transfer  of  the  note  of  the 
guarantor  to  the  guarantee,  and  imports  consideration  for 
the  contract  of  guaranty."     A  note  made  on  condition  that 

1  Miles  V.  Jones,  28  Mo.  87.  91  Ind.  578;  Leach  v.  Rhodes,  49  Ind, 

2  Villers  v.  Lewis,  1  Handy,  39.  291 ;  Winters  v.  Rush,  34  Cal.  136 ; 
SKeteltas  v.  Meyers,  19  N.  Y.  231.  Duiland  v.  Pitcairn.  51  Ind.  456; 
4  Jones  V.  Frost,  28  Cal.  245.  Peets  v.  Bratt,  6  Barb.  662 ;  Keteltas 
s  Postel  V.  Oard,  1  Ind.  App.  252 ;  v.  Meyers,  19  N.  Y.  231 ;  Lindell  v. 

27  N.  E.  Rep.  584  (1891).  Roakes,  60  Mo.  249;  Search  v.  Miller, 

6  Notman  v.  Green.  90  Cal.  172 ;  27    9  Neb.  26. 

Pac.  Rep.  157  (1891).  » Underhill  v.  Phillips,  10  Hun,  591. 

7  Barney  v.  Vigoreaux,  92  Cal.  631.  ^^  Dumont  v.  Williamson,  18  O.  S. 
fcDugan  V.  Campbell,  1  O.  115;   2    515. 

Bates'  Pldg.  830 ;  Keesling  v,  Watson,       "  Clay  t.  Edgerton,  19  O.  S.  549. 


§  298.]  BILLS    AND   NOTES.  285 

the  payee  shall,  during  a  certain  specified  time,  abstain  from 
intoxicating  liquor,  is  a  sufiicient  consideration  to  sustain  an 
action.^  Where  the  defense  is  interposed  in  an  action  by  an 
indorser  upon  a  note  that  he  is  not  an  innocent  holder  for 
value,  the  amount  paid  by  him  for  the  note  is  only  important 
so  far  as  it  affects  the  good  faith  of  the  purchaser,  and  he  is 
a  honajide  holder  even  though  he  has  paid  a  sum  less  than  its 
fair  and  reasonable  value.- 

Sec.  298.  Bona  fide  holders  —  Rights  of. —  A  person  who 
takes  paper  before  maturity  for  a  valuable  consideration  in  the 
usual  course  of  trade,  without  knowledge  of  any  facts  that 
would  impeach  its  validity  in  the  hands  of  the  original  parties, 
holds  it  by  a  good  title. ^  But  the  maker  is  not  liable  as  against 
the  holder  if  the  former  was  induced  by  fraud  to  believe  that 
he  was  signing  an  instrument  other  than  a  promissory  note.* 
A  person  taking  a  note  given  for  a  patent-right  with  knowl- 
edge of  its  consideration  takes  it  subject  to  such  defenses  only 
as  would  have  existed  against  it  if  such  words  had  been  legibly 
written  or  printed  thereon.'^  The  title  oisuhonafde  holder  of  a 
"  red  line  wheat "  note  cannot  be  impeached  by  showing  that  he 
took  it  under  circumstances  which  ought  to  have  excited  the 
susi)icion  of  a  prudent  man."  To  become  a  hona  fide  holder  it 
is  not  necessary  to  pay  the  full  face  value  of  a  note.'  A  person 
possessed  of  ordinary  faculties  and  ability  to  read,  who  signs 
a  note  without  knowledge  of  what  he  is  signing,  without  read- 
ing it,  but  relying  solely  on  the  representations  of  the  payee 
that  it  was  a  paper  other  than  a  note,  cannot  be  permit- 
ted, as  against  a  hona  fide  holder  before  maturity  for  value, 
to  deny  its  execution;^  nor  can  a  person  who  negligently 
signs  and  delivers  a  printed  note  without  knowledge  of 
what  it  is  deny  the  authority  of  a  person  to  whom  it  was 
delivered  to  till  the   blanks  therein    as  against  a  ho7ia  fide 

iLindell  v.  Rokes,  60  Mo.  249.  5  Tod  v.  Wick,  36  O.  S.  370.     See 

2  Tod  V.  Wick,  36  O.  S.  370 ;  Rooker    sec.  297. 

V.  Rooker,  29  O.  S.   1 ;    Kitchen  v.        ^Kitchen  v.  Laudenbach,  3  O.  C.  C. 

Laudenbach,  3  O.  C.  C.  228 :  Bailey  228 ;  aflE'd  in  48  O.  S.  177.     See  4  O. 

T.  Smith.  14  O.  S.  396.  C.  C.  65 ;  Johnson  v.  Way,  27  O.  S. 

3  Johnson  v.  Way.  27  O.  S.  374.  374. 

«De  Camp    v.   Hanima,    29  O.   S.        "  Baily  v.  Smith.  14  O.  S.  396. 
467.    See  Kingslaud  v.  Piyor,  33  O.        8  Winchel  v.  Crider.  29  O.  S.  480. 
S.  19. 


286 


BILLS    AND   NOTES. 


[§  299. 


holder.^  If  it  be  admitted  that  a  note  has  been  obtained  by 
fraud,  a  lona  fide  indorsee  before  due,  in  an  action  by  him, 
must  prove  that  he  received  it  without  notice,  for  value  and 
in  due  course  of  trade.-  An  answer  to  an  action  on  a  bill  not 
indorsed  by  the  payee,  denying  that  the  plaintiff  is  the  owner, 
and  alleging  that  he  did  not  receive  it  in  due  course  of  trade, 
is  a  good  defense.'  The  holder  of  negotiable  paper  will  be 
protected  against  defenses  arising  after  the  maker  has  notice 
of  the  transfer.* 

Sec.  299.  Indorsement. —  There  are  many  difficult  ques- 
tions connected  with  the  subject  of  indorsement.  The  con- 
tract is  largely  implied  from  circumstances;  but  an  indorse- 
ment of  a  note  made  to  transfer  title  to  a  purchaser,  though 
in  blank,  is  an  absolute  contract  in  writing,  by  which  the  in- 
dorsee binds  himself  to  pay  the  note,  if  on  presentment  the 
maker  does  not,  provided  due  notice  has  been  given  of  non- 
payment.^ Parol  evidence  is  oftentimes  permitted  to  show 
the  relationship  of  parties  or  the  nature  of  the  contract.  A 
party  indorsing  a  note  without  recourse  nevertheless  im- 
pliedly warrants  that  the  signatures  of  prior  parties  whose 
names  appear  thereon  are  genuine.^  An  indorser  transfer- 
ring a  note  upon  condition  that  the  same  is  to  be  collected 
at  the  risk  of  the  indorsee  is  still  responsible  for  the  note 
if  it  proves  to  be  forged.^  Where  a  debtor  of  a  bank  has 
transferred  paper  to  the  latter  as  payment  of  indebtedness 
owing  it,  indorsing  it  to  the  cashier,  the  latter  may  main- 
tain an  action  thereon;  and  a  defense  cannot  be  made 
thereto  of  which  neither  the  bank  nor  the  cashier  had  no- 
tice at  the  date  of  indorsement,  if  made  before  maturity.* 
The  mere  allegation  in  a  petition  that  a  defendant  is  lia- 
ble as  indorser  and  guarantor  implies  consideration.^  A 
blank  indorsement  may  be  reformed  by  way  of  defense; 
but  this  should  be  by  cross-petition  with  a  prayer  therefor. 


1  Ross  V.  Doland,  29  O.  S.  473. 

-'  White  V.  Francis,  4  Am.  Law  Rec, 
501. 

3  Louisville    Banking    Co.    v.    Mc- 
Donald, 1  Clev.  Rep.  1. 

<  Beard  v.  Dedolph,  29  Wis.  142. 

5  Farr  v.  Ricker,  46  O.  S.  265,  and    Heaton  v.  Hulbert,  3  Scam.  489. 
cases  cited. 


6  Dumont  v.  Williamson,  18  O.  S.515. 

'  Shave  v.  Ehle,  16  Johns.  201 ;  20 
N.  Y.  226. 

nVhite  V.  Stanley,  29  O.  S.  423. 

9  Clay  V.  Edgerton,  19  O.  S.  553 ; 
Hovpe  V.  Kimball,    2  McLean,  103  j 


§  300.]  BILLS    AND   NOTES.  287 

and  should  be  supported  by  clear  and  convincing  proof.' 
While  a  person  who  is  in  possession  of  negotiable  paper 
under  a  blank  indorsement  is  prima  facie  the  owner  thereof 
and  entitled  to  sue  thereon,  yet  this  presumption  may  be  re- 
butted and  the  rights  of  the  real  owner  established.''  The 
mere  indorsement  upon  a  note  of  a  stranger's  name  is  prima 
facie  evidence  of  guaranty  in  the  absence  of  proof  that  it  was 
made  at  the  time  of  execution.'  So,  where  a  stranger  in- 
dorses a  note  before  maturity  and  before  its  transfer  to  a 
third  party,  the  owner  and  holder  thereof  may  recover  against 
him  as  an  unconditional  guarantor  without  proof  of  demand 
and  notice.*  Where,  before  delivery  of  a  note  to  the  payee, 
a  person  becomes  responsible  thereon  only  as  an  indorser  for 
accommodation,  of  which  the  payees  had  notice,  such  payees 
only  hold  an  equitable  title  subject  to  all  equities  between 
the  original  parties;*  but  where  a  person  who  writes  his  name 
on  the  back  at  the  time  of  the  execution  refuses  to  become  a 
general  maker,  intending  to  become  only  an  indorser,  he  will 
be  regarded  as  a  conditional  guarantor.^  The  contract  of 
an  accommodation  indorser  is  entire,  and  the  note  cannot  be 
made  payable  part  to  one  person  and  part  to  another  without 
the  consent  of  the  parties  thereto.''  An  answer  stating  that 
the  defendant  placed  his  name  on  a  note  as  an  accommodation 
merely,  and  that  there  was  no  agreement  that  he  was  to  be 
liable  to  a  greater  extent  than  as  an  accommodation  indorser, 
is  a  sufficient  general  denial  of  an  allegation  in  a  petition 
charging  him  as  a  general  maker,  and  the  burden  of  proof  is 
on  the  defendant.^ 

Sec.  300.  Pleading  demand  and  notice. —  It  is  an  element- 
ary rule  that,  in  order  to  charge  an  indorser  of  a  note,  the 
petition  should  allege  presentment  at  maturity  and  due  notice 
to  the  indorser  of  non-payment.  The  law  on  this  subject  is 
strict  atid  well  defined.     There  are  exceptions,  however,  to 

1  Farr  v.  Ricker,  46  O.  S.  265.  4  Castle  v.  Rickley,  44  O.  S.  490. 

2  Osborn  v.  McClelland,  43  0.  S.  » Seymour  v.  Leyman,  10  O.  S.  283. 
384  6  Seymour  t.  Micky,  15  O.  S.  515. 

»Champiuu  v.  Griffith,  13  O.   228;        '  Erwin  v.  Lynn,  IG  O.  S.  539. 
RobinsoD  v.  Abell,  17  O.  36;  Oklliam        8  Parrish  v.  Mears,  1  Handy,  4931 
V.  Broom,  38  O.  S.  52;  18  O.  441 ;  9 
O.  139. 


288 


BILLS    AND    NOTES. 


[§  J500. 


this  rule.  It  is  also  a  familiar  rule  that  presentment,  protest 
and  notice  may  be  waived  verbally,  by  writing,  or  implied 
from  acts  which  are  of  sufficient  character  to  convince  the 
mind  that  a  waiver  was  intended;^  or  it  may  be  necessary 
where  an  indorser  has  taken  an  assignment  of  the  maker's 
property ;  ^  or  there  may  be  other  circumstances  which  excuse 
notice.  It  is  quite  essential  that  the  petition  should  contain 
a  clear  statement  of  the  fact  of  presentment  and  notice,  and 
if  it  has  been  waived  it  is  equally  necessary  to  allege  the  facts 
which  dispense  with  it,^  as  facts  dispensing  with  or  waiving 
demand  and  notice  to  charge  an  indorser  cannot  be  proved 
under  an  averment  of  demand  and  notice.* 

As  the  rules  of  pleading  require  the  pleader  to  state  the 
substantive  facts  constituting  his  cause  of  action,  and  not  the 
evidential  facts,^  a  complaint  alleging  demand  and  notice  upon 
a  note  in  a  case  where  an  indorser  has  made  a  promise  to  pay, 
with  full  knowledge  of  the  failure  on  the  part  of  the  holder 
thereof  to  make  presentment  and  give  notice,  need  not  allege 
those  facts,  but  the  usual  allegations  of  demand,  non-payment 
and  notice  of  dishonor  will  be  sufficient  when  sustained  by 
proof  of  such  facts.^  An  allegation  that  a  note  was  presented 
at  maturity  to  the  maker  for  payment  but  that  it  was  not  paid, 
of  which  the  indorser  had  due  notice,'  or  an  averment  that 
a  bill  was  presented  on  a  day  before  or  after  the  expiration 
of  the  days  of  grace,  with  an  additional  allegation  that  the 
bill  was  due;^  or  that  a  bill  was  presented  to  a  drawee  for 
payment  without  stating  when,  and  that  payment  was  re- 
fused;' or  a  general  allegation,  in  an  action  on  a  bill  against 
a  drawer,  that  the  same  was  not  paid  though  duly  presented 


1  Glaze  V.  Ferguson,  48  Kan.  159; 
Markland  v.  McDaniel,  51  Kan.  350 ; 
32  Pac.  Rep.  1114;  Goves  v.  Vining, 
7  Mete.  212;  Singerson  v.  Mathews, 
20  How.  496. 

2  Bank  v.  McGuire,  33  O.  S.  295; 
Kyle  V.  Green,  14  O.  495 ;  Delveling 
V.  Ferris,  18  O.  170 ;  Baird  v.  West- 
erman.  32  O.  S.  29. 

3  Clark  V.  Tryoti,  23  N.  Y.  S.  780. 

4  Hudson  V.  Wolcott.  2  Clev.  Rep. 
194. 


5  Ante,  sec.  50. 

6  Clark  V.  Tryon,  23  N.  Y.  S.  780. 
See  also  2  Daniel's  Neg.  Inst,  sec. 
1157;  Tubbetts  v.  Dodd,  23  Wend. 
379 ;  Meyer  v.  Hibsher,  47  N.  Y.  265 ; 
Ross  V.  Hurd,  71  N.  Y.  145 :  Bank  v. 
Moffat,  15  N.  Y.  S.  389;  Camp  v. 
Bates,  11  Conn.  487. 

7  Young  V.  Miller,  63  Cal.  302;  Fisk 
V.  :Miller.  63  Cal.  367. 

^  Peabody  v.  Fisher.  8  O.  535. 

9  Heaver  v.  Beatty,  2  W.  KG.  388. 


■^  300.]  BILLS    AND    NOTES.  289 

for  payment,  of  which  the  drawer  had  notice/ — have  all 
been  held  sufficient  allegations. 

Where  demand  and  notice  are  unnecessary  because  of  the 
fact  that  an  indorser  has  sufficient  property  in  his  possession 
to  indemnify  himself,  the  foUowino;'  averment  may  be  made 
in  the  petition:  "The  said  plaintiff  also  avers  that  he  was  ex- 
cused from  making  a  demand  upon  said  W.  H.  P.,  or  from 
notifying  the  said  defendant  that  said  notes  were  unpaid  on 

the day  of  ,  18 — ,  because  he  says  that  said  J.  B, 

(indorser)  then  had  sufficient  effects  in  his  possession,  by  vir- 
tue of  a  chattel  mortgage  (or  whatever  the  security  is),  to 
fully  and  completely  indemnify  him  against  the  payment  of 
said  promissory  note." 

In  an  action  against  a  guarantor,  where  the  contract  of 
guaranty  is  absolute  and  unconditional,  it  is  not  necessary  to 
aver  or  prove  demand  or  notice ;  but  where  the  contract  is 
dependent  upon  a  condition,  a  compliance  with  the  contract 
must  be  fully  alleged  and  proved  in  order  to  warrant  a  re- 
covery thereon.2  To  charge  guarantors,  demand  and  notice 
must  be  given.^  An  allegation  that  a  note  was  protested  after 
due  notice  has  been  held  not  equivalent  to  an  allegation  that 
it  was  presented  for  payment.* 

Demand  and  notice  is  essential  where  a  note  is  made  pay- 
able in  instalments  in  order  to  charge  an  indorsee  in  case  of 
default  in  the  payment  of  any  instalment.*  If  the  maker  of 
a  note  be  dead,  demand  should  be  made  upon  his  admin- 
istrator.8  Demand  on  one  of  several  joint  makers  is  sufficient 
to  charge  an  indorser.'^  Demand  need  not  be  made  by  a  partv 
whose  name  is  on  the  note  in  the  position  of  a  promisor 

iWood  V.   Dillingham,   1  Handy,  allegation  in  this  case  was:  "Where- 

29 ;  Gay  v.  Paine,  15  How.  Pr.  107 ;  upon  the  said  note  is  then  and  there 

Radway  v.  Mather,  5  Sand.  (S.  C.)  654.  duly  protested  for  non-payment,  all 

2  Clay  V.  Edgerton,  19  O.  S.  553 ;  of  which  the  said  H.  had  notice." 
Bashford  v.  Shaw,  4  O.  S.  266 ;  Brown  Protest  is  one  thing  and  notice  is  an- 
V.  Curtis,  2  N.  Y.  225 ;  Reed  v.  Hill-  other ;  the  former  may  be  made  and 
house,  7  Conn.  523.  the  latter  omitted. 

3  Greene  v.    Dodge,   2  O.  431,  the  «  Mallon  v.  Stevens,  6  W.  L.  B.  69. 
court  saying  that  a  contract  of  guar-  6  Huff  v.  Ashcraft,  1  Disn.  277. 
anty  is  in  its  very  nature  couditional.  7  Remington  v.  Harrington,   8   O. 

4  Price    V.    MeClae,   5    Duer,   670;  507. 
Cook  V.  Warren,  88  N.  Y.  37.     The 

19 


290 


BILLS    AND    NOTES. 


[§  300. 


who  is  in  fact  an  indorser,  as  the  indorsers,  having  no  recourse 
on  him  as  a  maker,  cannot  lose  anything  by  the  want  of  it.* 
If  a  maker  informs  a  bank  on  the  day  a  note  falls  due  that 
he  cannot  pay  it,  it  is  sufficient  to  warrant  a  finding  that 
a  demand  was  made,-  The  presentation  of  a  note  at  a  bank 
where  it  is  payable  on  the  day  of  maturity,  there  being  no 
funds  at  the  bank  to  meet  it,  is  sufficient  evidence  of  demand 
and  refusal.^  A  demand  may  be  made  after  business  hours  at 
the  place  where  a  note  is  payable  if  there  is  any  one  there  to 
answer.^ 

Demand  on  a  principal  debtor  and  notice  to  a  guarantor 
is  necessary  only  when  the  fact  of  the  liability  of  the  latter 
is  within  the  knowledge  of  the  guarantee;  but  if  the  facts 
upon  which  his  liability  rests  are  known  to  the  guarantor,  or 
each  party  has  equal  information,  he  must  take  notice  at  his 
peril.^  Demand  and  notice  is  not  necessary  upon  a  guarantor 
where  the  promise  becomes  an  original  one,^  nor  where  the 
guarantor  has  indemnity.^  ]N"o  averment  of  demand  and  no- 
tice is  necessary  where  a  guarantor  writes  upon  a  note,  "I 
guaranty  the  payment  of  the  within  note  to  C.  E.  or  order."  ® 
Demand  and  notice  may  sometimes  be  unnecessary,  as  when  a 
holder  has  been  thrown  off  his  guard  by  the  conduct  of  an 
indorser.^ 

Questions  of  the  sufficiency  of  demand  and  notice  and  of 
the  proper  parties  upon  whom  it  shall  be  made  are  frequently 
important  in  making  defenses  to  actions  upon  notes.  It 
is  essential  that  notice  either  expressly  or  by  implication  in- 
form an  indorser  of  the  dishonor  of  a  bill,^^  and  containing  a 
sufficient  description  of  the  instrument,  inaccuracy  not  mis- 
leading being  immaterial,"  and  must  show,  by  implication  at 
least,  that  the  note  was  duly  presented  to  the  maker  and  dis- 


1  Greenhough  v.  Smead,  3  O.  S.  415. 

2  Heman  v.  French,  2  C.  S.  C.  R 
561. 

3  Lafayette  Bank  v.  McLaughlin,  4 
W.  L.  b'  70. 

*  Fox  V.  Newell,  8  W.  L.  J.  421. 

»Bashford  v.  Shaw,  4  O.  S.  263; 
Wolfe  V.  Brown,  5  O.  S.  306 ;  Forest 
T.  Stewart,  14  O.  S.  249. 

6  Reed  v.  Evans.  17  0.  128. 


■J  Kyle  V.  Green,  14  O.  495;  Mc- 
Coy V.  Bank,  5  O.  548 ;  Delveling  v. 
Ferris,  18  O.  170. 

8  Clay  v.  Edgerton,  19  O.  S.  249. 

9  Boyd  V.  Bank,  32  O.  S.  526 ;  Dan- 
iel's Negotiable  Instruments,  sec 
1103;  Gove  v.  Willing,  7  Mete.  212. 

10  Bank  v.  McLaughlin,  4  W.  L.  J. 
70. 
n  Powell  v.  Bank,  1  Disn.  26a 


§  3<Jl.]  BILLS   AND    NOTES.  291 

honored,  although  it  is  not  necessary  to  state  that  the  indorser 
is  loolied  to  for  payment.^ '  If  the  notice  shows  that  demand 
was  made  at  an  improper  time,  although  in  fact  properly  made, 
but  the  notice  is  wrongly  dated,  an  indorser  will  not  be  held.^ 
Notice  need  not  be  given  to  more  than  the  first  immediate  in- 
dorser, he  having  the  same  time  to  give  notice  to  those  prior 
to  him.'  A  party  to  whom  a  note  is  sent  for  collection  is  the 
holder  for  the  purpose  of  making  demand  and  notice.*  j^otice 
may  be  sent  by  mail  on  the  day  of  default,  or  deposited  in  the 
mail  directed  to  the  indorser  in  time  for  the  mail  of  the  next 
day.*  In  an  action  on  a  bill  of  exchange,  a  claim  for  statutory 
damages  and  cost  of  protest  need  not  be  set  forth  in  the  pe- 
tition as  a  separate  and  distinct  cause  of  action  disconnected 
from  the  claim  on  the  bill.^ 

BILLS    OF    EXCHANGE. 

Sec.  301.  Action  hy  indorsee  or  holder  against  mater, 
drawer  or  indorser. —  An  indorsee  or  holder  of  a  note  or 
bill  which  is  made  payable  by  indorsement  or  delivery  may 
institute  an  action  thereon  against  the  maker,  drawer  or 
obligor ;  and  after  exercising  due  diligence  to  obtain  the  money 
from  the  maker,  drawer,  obligor  or  acceptor  he  may  bring 
an  action  against  the  indorser."  It  is  said  that  in  actions  by 
the  assignee  of  a  note  the  petition  need  only  state  what  is 
required  by  the  code,^  which,  as  before  stated,  is  that  a  copy 
with  all  credits  and  indorsements  thereon  may  be  given,  to- 
gether with  a  statement  that  a  specified  sum  is  due  and  pay- 
able.® Some  authorities  hold  that  an  indorsee  should  show  in 
his  petition  that  it  was  payable  to  the  order  of  the  payee,  set- 
ting out  fully  the  title  and  indorsement,^*  the  most  general 

1  Townsend  v.  Bank,  2  O.  S.  345.  6  Summit  Co.  Bank  v.  Smith,  1 
See  Fox  t.  Newell,  8  W.  L.  J.  42L  Handy,  575. 

2  Spang  V.  McGary.  1  W.  L.  M.  406 ;        '  R.  S.,  sec.  3172. 

Bank  v.  Townsend,  2  O.  S.  345.  8  Meyers  v.  Miller,  2  W.  L.  M.  420. 

>*  Lawson  v.  Bank,  1  O.  S.  206.  »  R.  S.,  sec.  5086.    See  mite,  sees.  58, 

*  Powell  V,  Bank,  1  Disn.  269.  296. 

5  Lawson    r.    Bank,    1    O.    S.   206.  lo  Jaccard  v.  Anderson,  82  Mo.  188 ; 

Ordinary   and   reasonable   diligence  Rousch  v.  Dufif,   35   Mo.   312;    Bliss 

only    being    required.      Lawson    v.  on  Code  Pldg.,  sec.  232. 
Bank,  supra;  Bank  v.  Townsend,  2 
O.  S.  343. 


2'J2  BILLS    AND    NOTES.  [§  301. 

form  of  pleading  title  being  to  state  that  the  note  or  bill 
was  made  and  delivered  to  the  plaintiff,  or  indorsed  or  as- 
signed to  him,^  although  it  is  quite  immaterial  what  ex- 
pression be  used,  as  an  allegation  that  the  plaintiff  is  a  hona 
fide  holder  and  owner,^  or  that  he  is  the  lawful  owner  and 
holder,'  or  that  the  note  was  delivered  for  value  received,  or 
that  he  lawfully  came  into  possession  of  it,*  or  that  he  pur- 
chased the  same,'  have  been  held  sufficient  averments  as  to 
title.  In  Ohio,  however,  it  is  held  that  an  allegation  of  title 
is  implied  by  force  of  the  statute  from  the  statement  that 
there  is  due  the  plaintiff  a  certain  amount,  and  that  it  is  not 
therefore  essential  that  an  indorsee  of  a  note  aver  extrin- 
sic facts  showing  his  right  or  title  to  the  paper.^  This 
allegation  by  an  assignee  cannot  be  true  unless  the  party 
alleging  it  owns  the  claim.^  While  this  may  be  considered  a 
well-settled  rule  of  practice,  nevertheless  it  seems  that  the 
better  way  would  be  to  state  all  of  the  facts  in  the  first  in- 
stance, as  shown  in  the  form  given.^  A  petition  by  an  in- 
dorsee of  a  note  need  not  aver  the  date  of  transfer,  and  is 
not  subject  to  a  motion  to  make  definite  and  certain  on  that 
account.'  In  an  action  by  indorsee  against  indorser  the  pe- 
tition should  allege  the  making  and  delivery  of  the  note  by 
the  maker  to  the  payee  and  the  indorsement  of  the  same 
by  the  payee.^"  A  person  other  than  a  payee  who  does  not 
give  a  copy  of  the  indorsement  in  his  petition  cannot  claim 
the  protection  given  to  a  hona  fide  indorsee  for  value  before 
maturity  although  the  note  shows  the  indorsement  thereon 
by  the  payee."  It  is  not  necessary  that  an  indorsee  allege 
that  the  indorsement  was  made  under  the  statute ; '-  nor  is  it 
essential  that  it  be  averred  that  the  same  was  transferred  for 
a  valuable  consideration,  as  that  is  presumed,  and  any  objec- 

1  Mitchell   V.    Hyde,   12  How.    Pr.        "  Id.  453 ;  Swan's  P.  &  P.  184 
460;  Appleby  v.  Elkins,  2  Sand.  673 ;        3  See  iwst,  sec.  814. 

Bliss  on  Code  Pldg.,  sec.  233.  9  Engeld  v.  Canfield,  1  Clev.  Rep. 

2  Holstein  v.  Rice,  15  How.  Pr.  1.        196.     An  averment  that  the  payee 

3  Reeve  v.  Fraker,  82  Wis.  243.  assigned  the  note  to  plaintiff  by  in- 
*Lee  V.  Ainslee,  1  Hilt  277.  dorsement  is  suflScient.  Simpkins  v. 
sPrindle  v.  Carruthers,  15  N.  Y.    Smith,  94  Ind.  470. 

435.  1"  Maxwell  on  Code  Pldg.  129. 

«  Sargent  v.  Railroad  Co.,  32  O.  S.       "  Tisen  v.  Hanford,  31  O,  S.  193. 
449,  453.  "  Snedker  v.  Test,  Tap.  113. 


§  301.]  BILLS   AND    NOTES.  293 

tion  in  that  respect  is  matter  of  defense.*  A  vendor  of  a 
note  transferring  it  by  indorsement  warrants  the  signatures  of 
the  prior  parties  even  though  without  recourse.-  ]!!^or  is  it 
necessary,  in  actions  against  persons  other  than  the  makers 
or  acceptors,  to  allege  the  kind  of  liability  upon  which  they 
are  sought  to  be  held,  but  only  the  facts  which  create  the 
same.^  In  an  action  by  an  indorsee  of  a  note  secured  by 
mortgage,  an  allegation  th-at  the  same  has  been  duly  assigned 
is  sufficient,  as  ownership  of  the  debt  necessarily  carries  with 
it  the  security.^  In  an  action  by  an  indorsee  against  his  in- 
dorser,  the  question  as  to  whether  or  not  a  blank  indorsement 
was  made  in  the  usual  course  of  trade  for  the  purpose  of 
transferring  title,  and  as  evidence  of  a  contract,  is  an  issuable 
fact  and  may  be  contradicted ;  and  a  parol  agreement  as  to 
the  liability  intended  to  be  assumed  may  be  shown.^  Recov- 
ery may  be  had  against  an  indorser  without  recourse  even 
though  some  of  the  prior  signatures  be  forged;^  so  if  the  in- 
dorser had  no  title,  and  in  some  instances  if  the  note  be  in- 
validated between  the  original  parties.''  In  order  to  hold  a 
remote  indorser  it  is  not  necessary  to  show  diligence  to  col- 
lect from  an  immediate  indorser.^  An  indorsee  is  entitled 
to  recover  the  full  amount  of  a  note  from  his  indorser  even 
though  the  former  paid  a  sum  less  than  the  face  of  the 
note.^  A  maker  is  not  liable  on  a  note  in  the  hands  of  a  hona, 
jlde  holder  if  he  was  induced  by  fraud  to  sign  the  same 
under  the  belief  that  it  was  not  a  note ;  ^'^  and  if  it  be  ad- 
mitted by  the  pleadings  that  it  was  so  obtained,  a  hona 
fide  indorsee  must  show  that  he  received  it  without  notice 
and  in  due  course  of  trade."  If  an  indorsee  has  practiced 
fraud  by  using  an  assumed  name,  a  drawer  in  a  suit  against 

i  Dumont  v.  Williamson,  18  O.  S.  speumngton  t.  Hamilton,  50  Ind. 

515.  397.    And   the   question  of  the  dili- 

*  Dumont  v.  AVilliamsou,  18  O.  S.  gence  of  the  indorsee  is  one  of  law, 
515 ;  29  Me.  434 ;  16  John.  201 ;  20  N.  when  the  facts  are  not  disputed,  and 
Y,  226.  when  contested  one  of  mixed  law 

3  Levy  V.  Trennell,  5  W.  L.  B.  793.     and  fact.     Davis  v.  Herrick,  6  O.  55; 

*  Barthol  v.  Blakin,  34  la.  452.  AValker  v.  Stetson,  14  O.  S.  89. 
6  Hudson  V.  Wolcott,  39  O.  S.  618 ;        ''  See  ante,  sec.  301. 

Morris  v.  Faurot,  21  O.  S.  155.  lo  De  Camp  v.  Hamma,  29  O.  S.  467. 

*  Dumont  v.  Williamson,  18  O.  S.  ^^  White  v.  Francis,  4  Am.  Law 
515.  Rec.  501. 

"  Blethen  v.  Lovering,  58  Me.  437. 


294:  BILLS    AND    NOTES.  [§  302. 

him  by  a  party  to  whom  such  indorsee  has  transferred  the 
bill  will  be  estopped  from  denying  that  the  legal  title  thereto 
is  in  the  plaintiff,  or  from  setting  up  as  a  defense  fraud  prac- 
ticed by  the  indorsee/  as  it  is  a  well-settled  rule  that  a  note 
or  bill  knowingly  made,  drawn  or  indorsed  to  a  fictitious  per- 
son is  regarded  as  made,  drawn  or  indorsed  to  bearer  and 
transferable  by  delivery.-  Iso  maker  or  acceptor,  or,  if  a  bill 
is  not  accepted,  no  drawer,  of  an  instrument  for  the  payment 
of  money  only,  shall  be  liable  in  an  action  thereon,  except  on 
a  warrant  of  attorney,  in  any  county  other  than  in  the  one 
which  he,  or  one  of  the  joint  makers,  acceptors  or  drawers 
resides  or  is  summoned.''  If  in  an  action  on  a  note  against 
the  makers,  payee  and  prior  holder,  service  is  made  upon  the 
latter  in  the  county  where  the  action  is  brought,  and  on 
the  other  defendants  in  a  different  county,  a  defense  that  the 
plaintiff  is  not  the  real  owner  of  the  note,  but  that  the  note 
was  transferred  to  the  prior  holder  mereh'  to  enable  him  to 
bring  suit  in  the  county  of  his  non-residence,  cannot  be  raised 
and  determined  on  a  motion  to  avoid  the  service  or  to  dismiss 
the  action,  as  it  involves  the  question  of  the  ownership  of 
the  notes,  and  hence  goes  to  the  merits  of  the  action.* 

BILLS   or    EXCHANGE FORMS. 

Sec.  302.  Petitiou  by  indorsee  against  acceptor,  drawer 
and  iudorser. — 

Plaintiff  says  that  the  defendants  are  indebted  to  him  upon 
a  certain  bill  of  exchange,  the  said  A.  B.  as  acceptor,  the  said 
C.  D.  as  drawer,  and  the  said  E.  F.  as  indorser  thereof  [omit- 
ting if  one  sued  alone'],  a  copy  of  which  with  all  credits  and  in- 
dorsements thereon  is  as  follows:'  [Copy  of  hill.'] 

That  on  the day  of ,  18 — ,  when  said  bill  became 

due  and  payable,  the  same  was  duly  presented  to  said  A.  B. 
and  payment  thereof  demanded,  which  was  refused,  and  notice 
thereof  was  duly  and  legally  given  to  the  said  C.  D.  and  E.  F., 
drawer  and  indorser  thereof  respectively. 

1  Forbes  v.  Espy,  31  O.  S.  474  3  R.  S.,  sec.  5038. 

2  Id.  483 ;  BoUes  v.  Stearns,  11  *  Linney  v.  Thompson,  44  Kan. 
Cusli.  320 ;  Story  on  Bills,  sees.  56.  765 ;  Drea  v,  Carrington,  33  0.  S. 
200;  3  Hill,  112;  4  E.  D.  Smith,  83;  595. 

6  La.  Ann.   624;  3  N.  H.  446;  3  Gil-         5  See  ante,  sees.  57,  58. 
man,  637. 


§§  303-305.]  BILLS   AND   NOTES.  295 

Plaintiff  therefore  demands  judgment  against  said  defend- 
ants for  the  sum  of dollars,  with  interest  at percent. 

from ,  with  $ ,  costs  of  protest  and  damages. 

Note.—  Where  a  bill  of  exchange  is  made  payable  to  one  person  and  at 
the  time  of  its  execution  another  signs  his  name  on  the  back,  the  latter  be- 
comes a  party  to  the  request  upon  the  drawee  to  pay  the  bill.  Church  v. 
Swope,  38  O.  S.  493.  A  drawee  who  pays  a  bill  without  funds  is  entitled  to 
be  reimbursed.  Id. ;  Dickerson  v.  Turner,  15  Ind.  4 ;  Swilley  v.  Lyon,  18  Ala. 
532. 

Sec.  303.  Petition  l).v  acceptor  against  drawer. — 

There  is  due  plaintiff  as  acceptor,  from  the  defendant  as 

drawer,  of  a  bill  of  exchange,  the  sum  of  $ ,  which  amount 

said  plaintiff  advanced  and  paid  in  accepting  said  draft,  with- 
out funds  to  meet  the  same,  a  copy  of  which  draft  \yith  all 
indorsements  thereon  is  as  follows:  [Copy.]  [or  as  in  ante, 
sees,  57,  58.1 

Wherefore  plaintiff  asks  judgment  against  said  defendant 
for  the  said  sum  of  | ,  with  interest  at per  cent,  from 

Note. —  Acceptor  for  accommodation  may  recover  amount  paid.  Con- 
nell  V.  Finnell,  11  Ind.  .527.  This  form  mayanswer  in  almost  any  action, 
as  it  may  be  varied  according  to  circumstances ;  the  copy  incorporated  in 
the  petition  shows  the  relation  of  the  parties. 

Sec.  304.  Petition  against  maker  for  non-acceptance. — 

[Gajjtio7i.] 

Defendant,  on  the day  of ,  18—,  at .  for  value 

received,  made  his  draft  or  bill  of  exchange  in  writino-,  dated 
on  that  day,  and  directed  the  same  to  A.  B.,  requiring  the 

said  A.  B.  to  pay  to  the  defendant, days  from  the  date 

thereof,  the  sum  of  dollars  and  interest  from  the  date 

thereof,  and  for  value  the  said  defendant  indorsed  the  same 
to  the  plaintiff  [or,  to  one  L.  M.,  who  then  and  there  indorsed 
the  same  to  the  plaintiff].  A  copy  of  said  draft  or  bill  is  as 
follows:  [o)'  as  in  sees.  57,  58']. 

That  the  same  was  duly  and  in  due  time  presented  to  the 
said  A.  B.  for  acceptance^  and  the  said  A.  B.  refused  to  accept 
the  same,  and  the  same  was  duly  protested  for  non-accept- 
ance thereof,  and  notice  of  such  presentation  and  non-accept- 
ance was  duly  given  to  the  said  defendant,  and  the  expense  of 
such  protest  was  the  sum  of . 

That  said  defendant  has  not  paid  said  draft  or  any  part 
thereof. 

Wherefore  plaintiff  demands  judgment,  etc. 

Sec.  305.  Petition  showing  excuse  for  non-presentment 
of  bill  to  drawee. — 

\_Caption.] 

Plaintiff  alleges  that  the  defendant  K.  B.,  on  the day 

of ,  18—,  drew  a  bill  of  exchange  upon  one  C.  D.,  whereby 


296  BILLS    AND   NOTES.  [§§  306-308. 

said  A.  B.  requested  C.  D.  to  pay  this  plaintiff  or  order  the 

sum  of doUars  within days  from  the  date  thereof, 

a  copy  of  which  bill  is  as  follows:  [Copy.'] 

That  at  the  date  of  drawing  said  bill  of  exchange,  and  ever 
since  said  date,  the  said  C.  D,  was  wholly  insolvent  and  en- 
tirely unable  to  pay  said  bill,  and  plaintiff  did  not  present  the 
same  to  him  for  acceptance,  which  would  not  have  been  ac- 
cepted had  it  been  so  presented,  of  all  which  the  defendant 
had  knowledge. 

There  is  therefore  due  plaintiff  from  said  defendant  on  said 

bill  the  sum  of  $ .  which  he  claims  with  interest  from , 

for  which  he  asks  judgment. 

Sec.  306.  Petition  when  demand  and  notice  are  waived. — 

XCaptioji.] 

That  on  the day  of ,  18 — ,  L.  drew  his  certain  bill 

of  exchange  of  that  date,  and  delivered  the  same  to  P.,  and 

thereby  then  and  there  requested  N., days  from  the  date 

thereof,  to  pay  P.,  or  order,  the  sum  of dollars. 

That  said  bill  of  exchange  was  duly  accepted  b}^  said  N.  O. 
on  the day  of ,  18 — . 

That  at  the  time  of  the  delivery  of  said  bill  of  exchange  to 
plaintiff  the  said  defendant  waived  the  presentation  thereof 

to ,  for  payment  and  notice  of  non-payment  thereof, 

a  copy  of  which  bill  with  the  indorsements  thereon  is  as  fol- 
lows : 

[Copy  of  hill  and  tridorsements.'] 

That  said  bill   has  not  been  paid,  and   there  is  now  due 

thereon  from  the  defendant  the  sum  of  | ,  which  he  claims 

with  interest  from ,  18 — . 

Wherefore  plaintiff  asks  judgment  against  said  defendant 

for  the  said  sum  of  % ,  with  interest  at per  cent,  from 

,  18-. 

[^Prayer.'] 

Sec.  307.  Allegation  where  drawee  could  not  he  found. — 

\^Captio7i.''^ 

Qn  the  -^—  day  of ,  18—,  on  which  said  bill  of  exchange 

became  due,  plaintiff  endeavored  to  find  the  said  E.  F.,  drawee, 

at ,  where  said  bill  was  due  and  payable,  that  the  same 

might  be  presented  to  him  for  payment,  but  that  said  E.  F. 
could  not  after  diligent  search  and  inquiry  be  found,  and  said 
bill  was  not  accepted,  but  was  duly  protested,  of  all  which 
defendant  had  due  and  legal  notice. 

Sec.  308.  Petition  hy  drawer  against  drawee  on  promise 

to  accept. — 

[^Caption.'] 

That  on  the  day  of  • ,  18—,  in  consideration  of 

[state  consideration'],  the  defendant  promised  the  plaintiff  to 


M 


§  309.]  EILLS    AND   NOTES.  297 

accept  and  pay  at  si^ht  a  draft  thereafter  to  be  drawn  by  him 

in  favor  of  E.  F..  calling  for  the  sum  of dollars. 

That  on  the day  of  ,  18 — ,  the  plaintiff  drew  said 

draft  and  delivered  the  same  to  said  E.  F.,  who  presented  the 
same  on  the day  of ,  IS — ,  to  said  E.  F.  for  accept- 
ance and  payment;  but  said  defendant  refused  to  accept  or 
pay  the  same,  in  consequence  whereof  the  plaintiff  was  com- 
pelled to  pay  said  draft,  with  costs  of  protest, dollars, 

and  charges  in  the  sum  of dollars,  of  all  which  said  de- 
fendant at  the  time  had  notice,  and  though  often  requested 

has  failed-  to  pay  plaintiff,  to  his  damage  in  the  sum  of • 

dollars. 

Note. —  Where  a  letter  has  been  written  by  one  party  to  another,  stating 
that  bills  to  a  certain  amount  would  be  accepted  if  accompanied  by  bills  of 
lading  for  shipments,  an  action  may  be  maintained  for  a  breach  of  promise 
to  accept,  by  a  third  person,  who  has  taken  such  bills  upon  the  faith  of  the 
letter.  Lonsdale  v.  Bank,  18  O.  126  (1849).  In  order  to  hold  a  drawee  on  a 
promise  to  accept  it  must  be  shown  that  the  bills  are  drawn  in  accordance 
with  authority.  Sherwin  v.  Brigham,  39  O.  S.  137-9.  As  to  sucli  agree- 
ments, see  Sherwin  t.  Brigham,  2  Clev.  Rep.  228. 

Sec.  309.  Petition  on  a  stolen  draft. — 

Plaintiff  says  that  on  or  about  the day  of ,  18 — , 

at   S.,  in   the  state  of  ,  one  J.  B.,  being"^  then  indebted 

to  the  plaintiff,  at  his  request  procured  from  the  bank  of  ^. 
a  draft,  of  which  the  following  is  a  copy :  \co]py\ ;  ^  and  then 
and  there  inclosed  the  same  in  a  letter  and  transmitted 
the  same,  properly  directed,  to  the  plaintiff,  at  U.,  in  the  said 
county  of  W.  Plaintiff  further  says  that  said  letter,  and  the 
draft  inclosed  therein,  never  came  to  the  plaintiff's  possession, 
but  was  wrongfully  taken  from  the  postoffice  by  some  person 
to  the  plaintiff  unknown,  and  without  his  knowledge  or  con- 
sent; and  the  person  so  taking  the  same,  on  or  about  the 

day  of ,  18 — ,  falsely  and  knowingly,  and  without 

authority  from  the  plaintiff,  and  without  his  knowledge  or 
consent,  forged  and  counterfeited  an  indorsement  of  the 
plaintiff's  name  upon  the  said  draft,  and  by  means  of  such 
forged  and  counterfeited  indorsement  then  and  there  pre- 
sented said  draft  to  the  defendant,  and  collected  the  same, 
and  now  holds  the  money  received  thereon.  Plaintiff  has 
demanded  of  the  defendant  the  money  so  received  by  him  to 
his  use  as  aforesaid,  but  he  refused  and  still  refuses  to  pay 
over  the  same  or  any  part  thereof. 

Wherefore  plaintiff  asks  judgment  against  the  said  de- 
fendant. 

Note.—  From  Shaffer  v.  McKee,  19  O.  S.  526.  A  maker  of  a  note  cannot 
safely  pay  it  to  one  who  has  stolen  it  from  the  payee  and  falsely  pretends 
to  hold  it  for  collection.     Nolte  v.  Hulbert,  37  O.  S.  445 ;  19  O.  S.  526. 

1  See  ante,  sees.  57,  58. 


2i98  Biixs  AND  NOTES.  [j:§  310-312. 

NOTES  —  FORMS    OF    PETITIONS. 

Sec.  310.  Petition  against  maker  ouly. — 

[^Caption.'] 

The  plaintiff  says  this  his  action  is  founded  on  a  promis- 
sory note  of  which  the  following  is  a  cop\',  with  all  the  credits 
and  indorsements  thereon:  {Copy  of  note],  [or  as  pointed  out 
in  ante^  sees.  57,  ■58.'] 

\_0j'  if  no  credits:]  There  are  no  credits  on  said  note. 

There  is  due  from  the  defendant  to  the  plaintiff  on  said 

note  the  sum  of  dollars,  which  he  claims,  with  interest 

from  the day  of ,  IS — ,  and  for  which  he  prays  judg- 
ment against  the  defendant. 

Note.—  See  Sargent  v.  Railroad  Co..  32  O.  S.  449 :  Tyaen  v.  Hanford,  31  O.  S. 
193.  Where  there  are  two  notes  embraced  in  tlie  same  petition  they  should  be 
separately  stated  as  two  causes  of  action.  Van  Namee  v.  People,  9  How.  Pr. 
198 :  Dorman  v.  Kellam,  4  Abb.  Pr.  202.  A  note  cannot  be  brought  to  im- 
mediate maturity  through  a  clause  in  a  mortgage  to  secure  the  same  au- 
thorizing the  mortgagee  to  declare  the  debt  due  upon  default  in  any  of  the 
provisions  of  the  mortgage.     White  v.  Miller,  54  ]S.  W.  Rep.  736  (Minn.,  1893). 

Sec.  311.  Petition  on  note  against  maker  and  indorser. — 

There  is  due  plaintiff  from  the  defendants. as 

maker,  and as  indorser,  the  sum  of  dollars, 

which  he  claims  with  interest  payable  annually  from  , 

18 — ,  on  a  promissory  note,  of  which  the  following  is  a  copy 
with  all  credits  and  indorsements:  [Cop)}/.] 

Said  note  was  not  paid  when  due,  and  due  notice  of  such 
non-payment  was  given  said  indorser, . 

Wherefore  plaintiff  asks  judgment  against  defendants  in  the 

sum  of dollars,  with  interest  thereon  at per  cent. 

from  the day  of ,  IS — ,  and  with  interest  at per 

cent,  upon  the  annual  instalments  of  interest  from  the  times 
at  which  they  respectively  became  payable  and  due,  and  for 
costs  in  this  action. 

Note.— From  Mills  v,  Vollrath,  27  W.  L.  B.  36,  unreported  case. 

Sec.  312.  Petition  against  maker  and  indorsers,  averring 
presentment,  etc, — 

[Caption.] 


Plaintiff  savs  that  there  is  due  from  the  defendants, 


as  maker,  and and ,  indorsers,  the 

sum  of dollars,  which  he  claims  on  a  promissory  note  of 

which  the  following  is  a  copy,  with  all  credits  thereon,  to  wit 
[or,  on  which  there  are  no  credits] :  [Copy  of  note.] 

On  the day  of ,  18 — ,  the  said  defendant  A.  B.  in- 
dorsed said  note  as  follows:  [Copy  of  i^idorsements.] 

On  the  day  said  note  matured  the  same  was  presented  to  the 

said  defendant, ,  maker  thereof  as  aforesaid,  and 

payment  thereof  demanded,  which  was  refused,  and  it  was 


^§  313-315.]  BILLS    AND    NOTES.  299 

thereupon  )3rotestecl  for  non-payment,  of  all  of  which  the  said 
,  indorser  thereof,  had  due  notice. 

[Or,  if  diligence  vjas  not  used  against  maker:']  That  when 
said  note  became  due  said  C.  D.  was  and  continuously  since 
has  been  notoriously  insolvent,  so  that  an  execution  against 
him  would  have  been  and  is  now  unavailing. 

Plaintiff  therefore  prays  judgment  against  said  defendants 
for  the  sum  of  $ with  interest  from . 

Sec.  318.  Petition  a2:ainst  maker,  indorser  and  guarantor. 

[CajHion.'] 

The  plaintiff  says  that  his  action  is  founded  on  a  promissory 
note  of  which  the  following  is  a  copy:  [6'o/^y.] 

On  the  back  of  said  note  are  the  following  indorsements: 
*'  Without  recourse,  D.  L.  J. ; "  "I  guaranty  the  payment  of  the 
within  note,  C.  Edgerton,  or  order.     Isaac  Clay." 

The  defendant  J.  H.  is  liable  on  said  note  as  maker,  and 
the  defendant  Isaac  Clay  as  indorser  and  guarantor.  The 
plaintiff,  C.  E.,  is  the  holder  and  owner  of  said  note.  There  is 
due  from  the  defendants  to  the  plaintiff  on  said  promissory 

note  the  sum  of  dollars,  which  he  claims  with  interest 

from  the day  of ,  IS — ,  and  for  which  he  asks  judg- 
ment. 

Note. —  Appi-oved  in  Clay  v.  Edgerton,  19  O.  S.  549. 

Sec.  314.  Simple  form  of  petition  by  indorsee  of  note  for 
yalne. — 

The  plaintiff  says  this  his  action  is  founded  on  a  promissory 
note  of  which  the  following  is  a  copy,  with  all  credits  and  in- 
dorsements thereon :  [6<9/;y.] 

The  following  are  all  the  credits  an€  indorsements  thereon : 
\_Credits  and  indoi'seinents.] 

The  above  note  was  duly  assigned  and  transferred  to  said 
plaintiff  for  a  valuable  consideration  before  due. 

There  is  due  from  said  defendants  to  plaintiff  on  said  note 

dollars,  which   he  claims,  with  interest   from  the  

•day  of ,  IS — ,  and  for  which  he  asks  judgment  and  costs 

of  this  suit. 

Note. —  From  Sbafer  v.  Krause,  Supreme  Court,  unreported.  Where  a 
party  relies  on  tlie  rights  of  a  bona  fide  indorsee,  an  allegation  merely  that 
there  is  a  certain  sum  due  the  plaintiff  is  not  sufKcient;  it  is  necessary  that 
he  give  a  copy  of  the  indorsements  relied  on.     Tysen  v,  Hanford,  31  O.  S.  193. 

Sec.  315.  Petition  by  indorsee  against  indorser  in  case  of 
failure  to  give  notice  for  want  of  funds. — 

[CajHion.] 

There  is  due  plaintiff  from  the  defendant  as  indorser  the 

sum  of dollars,  which  he  claims  with  interest  from at 

per  cent.,  on  a  promissory  note  made  and  executed  by 


300  BILLS    AND   NOTES.  [§  316. 

C.  D.,  of  which  the  following  is  a  copy  with  all  of  the  credits 
and  indorsements  thereon,  to  wit:  \_Copy  of  note  ?\ 

That  on  the day  of ,  IS — ,  the  said  E.  F.  indorsed 

said  promissory  note  in  the  words  following:  "Pay  to  the 
order  of  A.  B.     E.  F.,"*  and  delivered  the  same  to  the  plaintiff. 

That  at  the  time  said  C.  D.  made  said  promissory  note, 
and  from  that  time  until  it  was  presented  to  him  for  payment, 
the  said  C.  D.  did  not  have  any  funds  or  effects  of  E.  F.  in 
his  hands  belonging  to  E.  F.,  nor  had  he  received  any  consid- 
eration for  said  note,  but  made  said  note  at  the  request  of 
and  for  the  accommodation  of  said  E.  F.,  who  is  the  principal 
debtor  thereon.  The  said  E.  F.  therefore  has  not  sustained 
any  damage  by  reason  of  want  of  notice  of  the  non-payment 
of  said  note  by  said  C.  D. 

That  said  E.  F.  is  liable  as  indorser  on  said  note,  no  part  of 
which  has  been  paid. 

See.  316.  Petition  by  purchaser  for  value  against  admin- 
istrator of  deceased  maker  and  indorsers  of  note. — 

The  plaintiff,  A.  D.  S.,  for  cause  of  action  against  the  de- 
fendants states : 

That  the  defendant,  A.  B.  J.,  was  on  the day  of  , 

18 — ,  duly  appointed  and  qualified  as  administrator  of  the  es- 
tate of  J.  A.  J.,  deceased,  who  died ,  by  the  probate  court 

of county,  Ohio,  and  that  he  is  still  acting  as  such  adminis- 
trator. That  there  is  due  him  from  the  said  A.  B.  J.  as  ad- 
ministrator of  the  estate  of  J.  A.  J.,  deceased,  who  in  his 
life-time  was  the  maker,  and  from  the  defendants,  A.  P.  and 
J.  C.  S.,  who  were  each  indorsers  of  the  promissory  note,  a 
copy  of  which  hereinafter  follows,  with  all  the  credits  and  in- 
dorsements thereon,  the  sum  of dollars,  which  he  claims 

with  interest  at  six  per  cent,  from :  {Copy  of  note.] 

The  following  indorsements  appear  on  said  note:  [Copy  of 
indorsements.] 

"The  within  note  has  been  duly  presented  to  me  for  allow- 
ance as  a  claim  and  debt  against  the  estate  of  J.  A.  J.,  de- 
ceased.    The  same  is  herebv  disallowed  and  rejected. 

" ,  18—.  "  A.  B.  J.,  Adm'r." 

Your  petitioner  further  avers  that  there  are  no  other  or 
further  indorsements  on  said  note  and  that  no  payments  have 
been  made  thereon. 

That  on  the  day  of ,  IS — ,  plaintiff  presented  said 

note  to  the  defendant  A.  B.  J.,  as  such  administrator,  with  a 
sworn  written  statement  attached  thereto  of  his  claim,  and 
demanded  an  indorsement  of  allowance  thereon,  but  defend- 
ant A.  B.  J.,  as  such  administrator,  refused  to  make  such  in- 
dorsement and  disallowed  and  rejected  the  same. 

Your  ))etitioner  further  avers  that  he  became  the  owner 
and  holder  of  said  note  before  the  same  became  due  in  the 


§§  317,  318.]  BILLS    AND    NOTES.  301 

usual  course  of  business,  and  that  he  paid  a  valuable  consider- 
ation therefor. 

"Wherefore  plaintiff  prays  judgment  against  A.  B.  J.  as  ad- 
ministrator of  the  estate  of  J.  A.  J.,  deceased,  and  the  defend- 
ants A.  P.  and  J.  C.  S.,  the  indorsers  of  said  note,  for  the  sum 
of dollars,  with  interest  at per  cent,  from . 

Note. —  From  Seward  v.  Jones,  27  W.  L.  B.  247.  Where  the  maker  of  a 
note  dies  before  maturity  the  presentment  and  demand  must  be  made  to 
his  executor  or  administrator.  Huff  v.  Ashcraft,  1  Disn.  277.  A  purchaser 
for  value  before  maturity,  without  knowledge  of  anything  to  impeach  its 
validity,  may  recover  the  amount  of  note,  though  obtained  by  payee  of 
maker  by  fraudulent  means.  Kitchen  v.  Loudenback.  48  O.  S.  177.  To 
constitute  a  defense,  proof  must  show  that  he  acted  in  bad  faith-  Id. ; 
Johnson  v.  Way,  27  O.  S.  374. 

Sec.  317.  Petition  by  payee  of  note  against  executor. — 

[C'^'ption.] 

On  the day  of ,  18 — ,  said  J.  L.  died,  leaving  a 

will,  whereby  he  appointed  said  defendant  J.   L.,  Jr.,  sole 

executor  thereof,  which  will  was,  on  the day  of , 

18 — ,  duly  admitted  to  probate  in  the  probate  court  of 

county,  Ohio,  and  letters  testamentary  were,  on  the day 

of  — —,  18 — ,  by  said  court,  duly  issued  thereon  to  the  defend- 
ant, who  thereupon  qualified  and  entered  on  the  duties  of 
sucli  office. 

Tiie  defendant  as  such  executor  is  indebted  to  the  plaintiff 
on  a  promissory  note  of  which  the  following  is  a  copy,  with 
all  the  indorsements  thereon:  [6(9/>y.] 

Said  note  is  indorsed  as  follows:  \_Cqpy  of  indo7'sement8.'\ 

There  are  no  credits  on  said  note ;  and  there  is  due  to  the 
plaintiff  thereon  from  the  defendant,  as  executor,  the  sum  of 

dollars,  which  he  claims  with  interest  thereon  at 

per  centum  per  annum  from  the day  of ,  18 — . 

On  the day  of ,  18 — ,  the  plaintiff  duly  presented 

to  the  defendant  as  such  executor  a  written  statement  of  his 
said  claim,  and  demanded  an  indorsement  of  its  allowance 
thereon,  but  the  defendant  refused  said  allowance  and  in- 
dorsement, and  wholly  rejected  said  claim. 

"Wherefore  the  plaintiff  asks  judgment  against  the  defendant 

for  the  sum  of dollars,  with  interest  on dollars  at 

the  rate  of per  centum  per  annum  from  the day  of 

,  18-. 

Note.—  Frcmi  Lillie  v.  Bates,  3  O.  C.  C.  94.  As  to  objections  to  consider- 
ation of  a  note  by  heirs,  see  Nye  v.  Lathrop,  94  Mich.  411. 

Sec.  318.  Petition  by  indorsee  against  indorser  withont 
recourse  who  warranted  a  forged  indorsement.— 

[Cajytioii.'] 

Plaintiff  says  that  H.  E.,  on  the day  of  ,  18 — ,  at 

C,  Ohio,  made  his  promissory  note  in  writing  of  that  date 


302  BILLS   AND   NOTES.  [§  319. 

and  thereby  promised  to  pay  to  the  order  of  W.  W. dol- 
lars, for  value  received,  in  four  months  after  the  date  thereof, 
and  which  said  promissory  note  purports  to  be  indorsed  on 
the  back  thereof  by  AV.  W.,  which  said  note  afterwards  came 
into  the  hands  of  the  defendant,  who  then  and  there  indorsed 
and  delivered  the  same  to  plaintiff,  but  without  recourse  on 
him,  a  copy  of  which  note  with  all  the  credits  and  indorse- 
ments thereon  is  as  follows:  [Copi/.'] 

Plaintiff  avers  that  the  defendant  did  thereby  warrant  that 
the  indorsement  on  the  back  thereof  was  the  genuine  signa- 
ture of  W.  W.  and  was  made  by  him,  whereas  in  truth  and 
in  fact  said  signature  on  the  back  of  said  note  was  not  made 
by  said  W.  W.,  but  was  and  is  forged,  and  by  reason  thereof 
said  note  was  wholly  worthless  and  of  no  value,  the  said 
H.  E.,  the  maker  thereof,  being  w^hollj^  insolvent.  Plaintiff 
further  says  that  w^hen  said  note  matured  the  same  was  pre- 
sented to  the  said  defendant, ,  maker  thereof,  and 

payment  thereof  demanded,  which  was  refused,  and  due  no- 
tice thereof  given  to  the  said  defendant.  There  is  due  from 
said  defendant  upon  said  note  the  sum  of  dollars. 

Wherefore  plaintiff  prays  judgment  for  the  sum  of  

dollars,  etc. 

Note. —  Approved  in  Dumont  v,  Williams,  18  O.  S.  515. 

§  319.  Petition  by  bank  as  assignee  for  value  on  note  of 
corporation. — 

The  plaintiff  for  its  petition  herein  says: 

That  it  is  a  national  banking  association  duly  organized 
under  the  laws  of  the  United  States  of  America ;  that  the  said 
defendant,  the  Himrod  Furnace  Company,  a  corporation  duly 
organized  under  the  laws  of  the  state  of  New  York,  did,  on 

the day  of ,  IS — ,  execute  and  deliver  to  one  R.  A.  W. 

its  certain  promissory  note  in  writing  of  that  date,  a  copy  of 
which,  with  the  indorsements  thereon,  is  in  the  words  and 
figures  following,  to  wit:  \_Copy  of  7iote.'] 

That  said  R.  A.  W.  did  then  and  there  indorse  and  deliver 
said  promissory  note  to  this  plaintiff,  who  is  now  the  owner 
and  holder  thereof. 

That  there  was  paid  on  said  note,  on  the day  of , 

18 — ,  the  sum  of dollars. 

That  afterwards,  on  the day  of ,  18 — ,  said  plaint- 
iff did  request  said  defendant  to  pay  to  it  the  sum  of  money 
then  remaining  due  upon  said  note,  yet  the  said  defendant  did 
not  pay,  nor  has  it  since  paid,  the  same  nor  any  part  thereof. 

Plaintiff  says  that  there  is  now  due  it  on  said  note  from  said 
defendant  the  sum  of dollars. 

Note. —  From  Iron  City  Nat  Bank  v.  Himrod  Furnace  Co.,  Supreme 
Court,  unreported. 


11 


§§  320,  321.]  BILLS    AND    NOTES.  303 

Sec.  320.  Petition  on  note  wrongly  dated. — 

Plaintiff  says  that  on  th« day  of ,  18 — ,  the  defend- 
ant made  his  promissory  note  in  writing  bearing  date  by  mis- 
take on  the day  of ,  18 — ,  when  in  fact  said  promis- 
sory note  was,  at  the  time  of  making  the  same,  intended  by 

the  plaintiff  and  defendant  to  be  dated  on  the day  of -^ 

18 — ,  and  delivered  said  note  to  plaintiff,  a  copy  of  which,  with 
all  credits  and  indorsements  thereon,  is  as  follows:  [Copr/.'\ 

There  is  due  plaintiff  from  said  defendant  on  said  note  the 

sum  of dollars,  which  he  claims  with  interest  at per 

cent,  from  the day  of ,  IS — . 

Note. —  A  note  by  mistake  wrongly  dated,  received  by  holder  when  ap- 
parently overdue,  though  not  in  fact,  the  title  otherwise  being  perfect,  i& 
not,  on  account  of  the  date,  subject  to  the  equities  between  the  original 
parties.  Dennison  v.  Jessup,  1  Disn.  .580.  Where  a  bill  is  post-dated  or 
ante-dated,  the  date  of  its  issue  determines  its  maturity,  and  parol  evidence 
is  inadmissible  to  fix  day  of  issue.  4  Lawson's  R.  &  R,  sec.  1467,  and  cases. 
It  is  immaterial  on  what  part  of  the  note  the  date  is  placed.  Sheppard  v. 
Graves,  14  How.  505. 

See.  321.  Petition  for  instalment  due  on  note. — 

[CajiHion.'] 

Plaintiff  says  that  the  defendant  made  and  delivered  to  him 
a  promissory  note  of  w^hich  the  following  is  a  copy  with  all 
credits  and  indorsements  thereon,  to  wit  [or,  upon  which 
there  are  no  credits  or  indorsements] :  [Coj)^.] 

That  there  is  due  plaintiff  from  defendant  the  sum  of 

dollars,  being  the  — —  instalment  on  said  note,  which  became 

due  and  payable  on  the day  of  ,  18 — ,  which  he 

claims  with  interest  from  the day  of ,  18 — . 

[Or,  The  provisions  of  said  note  w^ere  such  that,  if  default  be 
made  in  the  payment  of  any  one  instalment  when  the  same 
became  due,  then  the  whole  amount  thereof  should  become 

due  and  payable.     That  on  the  day  of  ,  18 — ,  the 

instalment  on  said  note  became  due  and  payable,  which 

the  defendant  has  wholly  failed  to  pay,  whereby  the  whole 
amount  of  said  instalment  has  become  clue  and  payable.] 

Wherefore  he  asks  judgment  against  said  defendant  for 

said  sum  of dollars  with  interest  from  the day  of 

,  18-. 

Note. —  Where  a  note  is  payable  in  a  series  of  instalments,  and  it  is  pro- 
vided that  a  less  sum  would  be  accepted  in  full  payment  if  each  instalment 
is  punctually  paid,  the  larger  sum  is  in  the  nature  of  a  penalty,  and  payment 
of  the  lesser  sum  discharges  the  obligation  even  though  there  be  default  in 
paying  the  instalment.  Longsworth  v.  Askrne,  15  O.  S.  370.  If  interest  on 
a  note  be  payable  in  instalments,  and  there  is  a  provision  that  upon  default 
of  any  instalment  it  shall  become  due  and  payable,  it  matures  on  the  first  de- 
fault, and  indorsers  thereon  are  discharged  *if  demand  and  notice  of  non- 
payment is  not  given.  Mallon  v.  Stevens.  6  W.  L.  B.  69.  A  person  purchasing 
a  note  payable  in  instalments  after  default  as  to  one  instalment  takes  it  sub- 
ject to  the  equities  between  the  original  parties.    Vinton  v.  King,  4  Allen, 


■304  BILLS   AifD   NOTES.  [§§  322,  323. 

Sec.  322.  Petitiou  for  interest  due  ou  uote. — 

\  Caption.'] 

That  the  defendant  is  indebted  to  the  plaintiff  in  the  sura 
of  % for  the instalment  of  interest  now  due  on  a  cer- 
tain promissory  note  executed  and  delivered  by  the  defend- 
ant to  the  plaintiff  on  the day  of ,  18-^,  for  the  sum 

of  $ ,  with  interest  at per  cent.,  payable  annually,  a 

copy  of  which  note,  with  all  the  credits  and  indorsements 
thereon,  is  as  follows :  \_Copy.'\ 

That  no  part  of  said  interest  has  been  paid,  and  there  is 
now  due  thereon  from  the  defendant  to  the  plaintiff  the  sum 
of  $ ,  which  he  claims  with  interest  from ,  18 — . 

Wherefore  plaintiff  asks  judgment  for  said  sum  of  $ . 

Note, —  An  action  maybe  maintained  to  recover  interest.  Robbins  v. 
Cheeii,  32  Ind.  328 ;  Marks  v.  Trustees,  56  Ind.  288. 

Sec.  323.  Petitiou  on  notes  and  to  correct  error  in  an  ac- 
counting thereon. — 

The  plaintiff  says : 

1st.  This  his  first  cause  of  action  is  founded  upon  a  promis- 
sory uote  of  which  the  following  is  a  true  copy:  \Copy^ 

2d.  There  are  no  credits  on  said  note. 

od.  There  is  now  due  the  plaintiff  from  said  defendant  the 

sura  of  $ ,  which   he  claims  with  interest  from , 

18 — ,  for  which  plaintiff  prays  judgment  against  defendant. 

Second  cause  of  action : 

1st.  Plaintiff  avers  that  his  second  cause  of  action  is  also 
founded  upon  a  promissory  note  of  which  the  following  is  a 
true  copy.  \Co])iji\ 

2d.  There  are  no  credits  on  said  note. 

3d.  The  plaintiff  further  says  that  on  the day  of , 

18 — ,  the  plaintiff  and  defendant  had  a  mutual  accounting  on 
two  certain  promissory  notes,  one  of  said  notes  bearing  date 

,  IS — ,  for  % ,  with  per  cent,  interest,  and 

upon  which  note  last  named  there  were  numerous  credits,  and 
during  the  progress  of  said  calculation  there  arose  a  dispute  as 
to  whether  the  note  sued  upon  in  this  second  cause  of  action 

should  also  be  credited  on  said  -■> note  of  said  date  above 

set  forth,  in  addition  to  the  cash  credits  made  thereon,  and 
thereupon  plaintiff  and  defendant  agreed  that  said  note  of 

$ herein  sued  upon  should  be  credited  on  said  % above 

named,  but  said  agreement  was  made  with  the  distinct  under- 
standing and  mutual  consent  of  both  plaintiff  and  defendant 
that  should  it  turn  out  that  said  defendant  was  not  entitled  to 

be  credited  with  said  amount  of  said  note  of  % ,  the  said 

accounting  was  to  be  opened  up  and  a  new  accounting  made 
and  the  mistake  corrected,  and  that  the  defendant  execute  to 
the  plaintiff  his  promissory  note  for  whatever  the  amount  of 


§§  324,  325.]  BILLS    AND    NOTES.  305 

the  mistake  should  aggregate:  and  thereupon  on  said 


day  of ,  18 — ,  the  said  plaintiff  handed  over  to  said  de- 
fendant said  note  of  $ herein  sued  upon,  with  some  other 

papers.   Plaintiff  avers  that  there  was  a  mistake  in  said  mutual 

calculation  in  the  sum  of  $ ,  with  per  cent,  interest 

on  the  same  from ,  18 — ,  and  that  said  mistake  was 

discovered  within  one  week  after  said  calculation  was  made, 
and  thnt  he  then  and  there  notified  the  defendant  of  said  mis- 
take and  requested  him  to  correct  the  same,  in  pursuance 
of  their  said  arrangement  and  agreement,  but  the  defendant 
then  and  there  neglected  and  refused  to  comply  with  his  part 
of  said  mutual  agreement,  and  has  ever  since  refused  and  still 
refuses  to  correct  said  mistake  or  pay  to  the  plaintiff  said  sum 
of  $ ,  with  the  interest  thereon. 

4th.  There  is  now  due  the  plaintiff  from  said  defendant  the 

sum  of  8 ,  with per  cent,  interest  on  same  from 

,  18—. 

5th.  Wherefore  plaintiff  prays  judgment  against  said  de- 
fendant on  amounts  set  forth  in  the  first  and  second  causes  of 
action  herein  in  the  sum  of  $- ,  with  interest,  etc. 

Note.— From  Edwards  v.  Griffiths,  48  O.  S.  664. 

Sec.  324.  Petition  by  partnership  against  partners  as 
makers  and  indorsers. — 

Plaintiff  is  a  partnership  formed  for  the  purpose  of  carrying 
on  business  in  the  state  of  Ohio. 

Defendants  are  each  a  partnership  formed  for  the  purpose 
of  carrying  on  business  m  the  state  of  Ohio. 

There  is  due  plaintiff  on  a  promissory  note  from  the  said 
J.  K.  and  W.  I.,  partners  as  Pt.  I.  &  Co.,'  as  makers,  and  said 
H.  C.  B.  and  H.  H.  K  as  indorsers,  defendants,  the  sum  of 

dollars,  which  he  claims  with  interest  from ,  a  copy 

of  which  note  with  all  credits  and  indorsements  is  as  follows: 
\_Copy.'\ 

Said  plaintiff  further  says  that  said  note  was  duly  presented 
for  payment  to  the  makers  at  maturity,  which  was  refused, 
and  notice  of  non-payment  was  duly  given  to  said  indorsers. 

Wherefore  said  plaintiff  prays  judgment  against  said  de- 
fendants in  the  sum  of dollars,  with  interest  from . 

IJoTE.—  From  Slevin  v.  Reynolds.  1  Handy.  378.  See,  also,  Ohio  Ins.  Co. 
V.  Goodin.  1  Handy,  31. 

Sec.  325.  Petition  by  surviving  partner  against  a  firm  on 
note. — 

\^Captwn.'] 

Plaintiff  says  that  he  is  the  surviving  partner  of  the  firm  of 
A.  B.  &  Co.,  late  a  partnership  formed  for  the  purpose  of 
doing  business  in  the  state  of  Ohio. 

That  the  defendants  are  a  partnership  formed  for  the  pur- 
20 


306  BILLS   AND  NOTES.  [§§  326,  327. 

pose  of  carrying  on  business  in  the  state  of  Ohio ;  that  on  the 

day  of ,  IS — ,  said  defendants,  in  their  firm  name, 

made  and  delivered  to  the  plaintiff  and  one  C.  D.,  then  a  part- 
nership formed  for  the  purpose  of  doing  business  in  the  state 
of  Ohio,  a  promissory  note  of  which  the  following  is  a  copy 
with  all  credits  and  indorsements  thereon,  to  wit:  [Coj^y.'] 

There  is  due  thereon  from  the  said  defendants  to  the  plaint- 
iff as  such  surviving  partner  the  sum  of dollars,  with  in- 
terest from  the  — —  day  of ,  18 — . 

Wherefore  plaintiff  asks  judgment. 

Note. —  The  existence  of  a  partnership  must  be  specifically  averred,  Bisch- 
off  V.  Blease,  20  S.  C.  460. 

Sec.  326.  Petition  by  payee  against  surviving  partner  on 
note. — 

Plaintiff  says  that  defendant  is  the  surviving  partner  of 
A.  B.  &  Co.,  late  a  partnership  formed  for  the  purpose  of  car- 
rying on  business  in  the  state  of  Ohio.  That  there  is  due 
plaintiff  from  defendant,  as  such  surviving  partner,  the  sum  of 
dollars,  on  a  promissory  note,  which  he  claims  with  in- 
terest from  the day  of ,  18-^,  of  which  the  following 

is  a  copy,  with  all  the  credits  and  indorsements  thereon,  to  wit : 
{Copy.'] 

Wherefore  plaintiff  prays  judgment  against  the  said  defend- 
ant as  such  surviving  partner  for  said  sum  of dollars,  with 

interest  from . 

Sec.  327.  Actions  on  lost,  destroyed  or  stolen  instru- 
ments, with  form  of  petition. —  Before  the  adoption  of  the 
code  it  was  held  that  an  action  at  law  could  be  maintained 
by  the  owner  of  negotiable  paper  which  had  been  lost  after 
it  fell  due,  without  requiring  indemnity,  w^hen  the  circum- 
stances were  such  that  it  could  not  be  produced  for  payment 
a  second  time ;  but  if  lost  before  due,  recovery  cannot  be  had 
until  complete  indemnity  is  furnished  against  a  possibility  that 
the  note  would  be  presented  for  payment.  The  reason  of  the 
rule  is  apparent,  because  if  lost  after  due  it  will  be  charged 
with  all  the  equities  against  the  original  holder,  but  if  lost 
before  due  there  is  a  possibility  that  it  ma}''  be  outstanding  in 
the  hands  of  an  innocent  holder.  Hence,  if  suit  be  brought 
on  a  note  lost  before  due,  the  remedy  is  in  equity,  where  indem- 
nity may  be  required.'     It  Avould  seem,  therefore,  that  as  the 

iMowry  v.  Mast,  14  Neb.  510;  Thayer  v.  King,  15  O.  242;  Story's  Eq., 
sec.  86. 


{ 


g  327.]  BILLS   AND    NOTES.  307 

code  affects  only  forms  and  not  rights,  this  question  would  be 
settled  upon  the  same  principles  as  before  the  adoption  of  the 
code.'  It  has  been  held  that,  where  a  note  has  been  acci- 
dentall}^  destroyed,  suit  may  be  maintained  thereon  without 
indemnity.- 

It  is  considered  unnecessary,  in  framing  a  petition  on  a  de- 
stroyed note,  to  aver  the  destruction  thereof  when  a  copy  is 
incorporated  in  the  petition,  and  that  an  ordinary  form  of 
petition  will  be  sufficient.  At  common  law  a  petition  which 
did  not  aver  title  was  clearly  defective;  but  under  the  code 
such  a  defect  may  be  supplied  by  implication  from  the  ordi- 
nary averments.^  It  is  not  usual  or  regarded  as  necessary  to 
declare  specially  in  an  action  on  a  lost  note  that  the  same  has 
been  lost.*  The  better  course,  however,  would  seem  to  be  to 
frame  a  petition  so  that  a  court  will  not  be  compelled  to  supply 
any  necessary  facts  by  implication.  A  note  partly  destroyed 
may  be  declared  on  as  entire,  and  it  is  not  necessary  that  the 
fact  be  set  out  in  the  petition.^  Riecovery  may  be  had  upon 
a  draft  drawn  upon  a  bank  by  the  payee  thereof  against  the 
one  who  procured  the  same,  although  it  is  stolen  from  the 
mails  and  transferred  by  a  forged  indorsement  to  an  innocent 
person  who  drew  the  money.*  The  giving  of  a  bond  of  in- 
demnity in  an  action  against  the  maker  of  a  note  is  said  to 
be  essential  only  when  negotiable."  It  has  been  suggested, 
however,  that  the  better  practice  in  such  cases  is  to  tender 
indemnity  before  suit  and  allege  the  same  in  the  petition,  al- 
though such  a  course  is  not  absolutely  necessary.^ 

While  it  has  been  generally  considered  that  the  ordinary  form 

1  Lamson  v.  Pfaflf,  1  Handy,  450,  8  Randolph  v.  Harris,  28  Cal.  561. 

•  Arts  V.  Leggett,  16  N.  Y.  582 ;  The  court  may  stay  execution  until 
Blandon  v.  Wade,  20  Kan.  251.  indemnity  is  furnished  (Bissbing  v. 

3  Sargent  v.  Railroad  Co.,  32  O.  S.  Graham,  14  Pa.  St.  14),  as  the  parties 

449.  liable  are  entitled  to  the  surrender 

« Viles  V.  Moulton,  11  Vt.  470.  of  the  note   before  payment     It  is 

*Duckvvall  V.  Weaver,  2  0.13-16.  unnecessary   to    furnish    indemnity 

*  Shaffer  v.  McKee,  19  O.  S.  526.  when  the  note  is  clearly  shown  to 
See  form  of  petition  in  this  case.  have  been  destroyed,  or  when  it  ap- 

■  Wright  V.  Wright,  54  N.  Y.  437 ;  pears  that  the  defendant  is  protected 

Frank  v.  Wessels,  64  N.  Y.  155.    See,  by  the  statute  of  limitations.     Dan- 

also,  Randolph    v.    Harris,   28    Cal.  iel's  Neg.  Inst,  sec.  1481. 
561. 


803  BILLS   AND   NOTES.  [§  328. 

of  petition  on  a  note  is  sufficient  for  an  action  on  a  lost  note/ 
the  following  form  is  given  as  a  special  declaration  upon  a 
lost  note  by  an  indorsee  against  the  maker : 

Plaintiff  says  that  on  the day  of ,  18 — ,  the  defend- 
ant A,  B.  made  and  delivered  to  E.  F.  a  proraissor}'-  note  for 

the  sum  of dollars,  a  copy  of  which,  with  all  credits  and 

indorsements  thereon,  is  as  follows:  [Copt/.] 

That  thereafter  and  before  the  same  became  due  the  said 
E.  F.  indorsed  said  note  to  this  plaintiff,  and  that  before  the 
same  became  due,  and  without  any  neglect  on  the  part  of  this 
plaintiff,  it  was  lost  and  cannot  be  found,  although  diligent 
search  has  been  made  therefor.  That  said  note  was  not  in- 
dorsed by  this  plaintiff,  and  that  at  the  maturity  thereof 
plaintiff  tendered  to  defendants  a  good  and  sufficient  bond, 
payable  to  them,  and  signed  by  plaintiff  as  principal  and  C.  D. 

as  surety,  with  a  penalty  of  dollars,  conditioned  that 

plaintiff  would  save  and  keep  defendant  harmless  against  all 
suits  or  claims  made  by  any  person  who  might  have  obtained 
possession  thereof,  and  has  thereupon  demanded  payiilent, 
which  was  refused,  and  said  note  is  now  due  and  unpaid. 

Plaintiff  therefore  brings  said  bond  into  court  for  the  use 
and  benefit  of  the  said  defendants. 

Wherefore  plaintiff  prays  judgment  against  said  defend- 
ants, etc. 

DEFENSES. 

Sec.  328.  Answers  to  actions  on  notes  and  bills  —  General 
rules. — Where  a  defendant  relies  upon  fraud  as  a  defense,  the 
facts  constituting  the  same  must  be  fully  set  forth.-  An  an- 
swer alleging  that  a  note  was  obtained  by  fraud,  misrepresen- 
tation and  connivance,  specifically  setting  forth  the  facts,  pre- 
sents an  issue  to  which  a  reply  must  be  made ;  and  so  when 
an  answer  states  that  a  note  was  executed  without  considera- 
tion.^ The  alleged  fraud  must  extend  to  the  whole  note.*  The 
rule  is  otherwise  where  usury  is  claimed  as  a  defense.^  A  de- 
fendant may  claim  that  he  did  not  execute  a  note,  or  that  if 
his  signature  thereto  be  genuine,  it  was  obtained  by  fraud,  or 
that  it  was  without  consideration.^    An  answer  alleging  a  spe- 

1  Bates'  Pldg.,  sec.  317.  3  Evans  v.  Stone.  80  Ky.  78. 

2Lefler  v.  Field.  53  N.  Y.  621 ;  Gif-        *  Harland  v.  Read.  3  O.  285. 
ford  V.  Carville,29  Cal.  589 :  McComas        5  Selser  v.  Brock.  3  O.  S.  302. 
V.  Haas.  93  Ind.  280 ;  Wilder  v.  De        6  Citizens"  Bank  v,  Clossou,  29  O.  S. 

Cou,  18  Minn.  470.    See  sec.  607,  post  78. 


§  328.]  BILLS    AND    NOTES.  309 

cific  sum  due  upon  a  note,  claiming  payment  in  full,  is  an  allega- 
tion of  new  matter,  which  Will  be  taken  as  true  in  the  absence 
of  a  reply  ;^  and  an  answer  which  states  that  a  note  was  never 
protested  states  a  good  defense  as  to  the  cost  of  protest.^  A 
denial  that  the  plaintiff  is  the  owner  of  a  note  or  bill,  and  that 
it  was  not  received  in  due  course  of  trade,  is  a  good  defense.' 
In  an  action  against  makers  and  indorsee,  one  of  the  defendant 
makers  cannot  urge  in  support  of  a  demurrer  to  the  petition 
that  there  are  other  defendants  joined  with  him  as  to  whom  the 
facts  stated  in  the  petition  are  not  sufficient;^  nor  can  a  de- 
fendant show  that  a  note  is  forged  under  an  answer  which 
merely  avers  that  "  the  defendant  denies  the  allegation  of 
the  petition."  He  must  set  out  in  his  answer,  in  a  substan- 
tial manner,  his  whole  defense.^  Nor  is  an  allegation  that 
a  note  is  "  not  outstanding  against  the  maker,"  and  that 
there  is  nothing  due,  proper,*'  as  it  is  a  mere  conclusion^ 
embodying  no  matter  of  fact,  and  as  a  pleading  has  no  legal 
effect.^  If  it  be  alleged  as  a  defense  that  a  note  is  wholly 
without  consideration  and  void,  and  the  plaintiff  joins  issue 
without  requiring  a  statement  of  facts,  evidence  tending  to  im- 
peach or  sustain  the  consideration  may  be  admitted.^  The 
maker  of  a  note  may,  as  a  defense  to  an  action  on  the  note,  show 
that  it  was  founded  on  an  illegal  agreement,  even  though  he 
is  in  pari  delicto.^  An  answer  relying  on  the  illegality  of 
the  contract  between  the  original  parties  should  ordinarily 
contain  a  statement  affecting  the  title  of  plaintiff,  but  may 
be  aided  by  a  petition  which  contains  facts  from  which 
it  may  be  inferred  that  plaintiff  was  not  a  'bona  fide  holder, 
as  against  a  demurrer.^^  An  answer  merel}^  alleging  that 
the  defendant  has  compromised  a  note  sued  upon,  without  stat- 
ing the  facts  constituting  the  alleged  compromise,  is  insuffi- 
cient ; "  and  a  person  capable  of  reading,  who  signs  a  note  with- 
out reading  it  or  knowing  what  he  is  signing,  cannot  be  heard 

1  Fewster  v.  Goddard,  25  O.  S.  276.        '  Bank  v.  Lloyd,  18  O.  S.  353. 

2  Bartlett  v.  Jones,  1  Clev.  Rep.  219.        » Chamberlain  v.  Railroad  Co.,  15 

3  Louisville  Banking  Co.  v.  McDon-    O.  S.  225. 

aid,  1  Clev.  Rep.  173.  9  Jacobs  v.  Mitchell,  46  O.  S.  603. 

4  Slevin  v.  Reynolds,  1  Handy,  37.       i<»  Gebhardt  v.  Sorrels,  9  O.  S.  461. 
SHouser  v.  Metzger,  1  C.  S.  C.  R       ^^  Mitchell  v.  Freedly.  126  Ind.  546. 

164.  See  anU,  sec.  146,  form. 

«  Larrimore  v.  Wells,  29  O.  S.  13. 


310  BILLS    AND    N0TE3.  [§  328. 

to  deny  its  execution  as  against  a  purchaser.'  An  accommoda- 
tion drawer  of  a  bill  made  payable  at  a  particular  bank  can- 
not be  held  liable  thereon  to  a  third  person  after  discount 
has  been  refused  by  the  bank  for  value;  nor  can  he  be  h  ''1 
liable  if  the  bank  subsequently  discounts  it  for  a  third  party: 
such  facts,  to  be  available  by  the  drawer,  must  be  pleaded 
by  him.2  In  an  action  brought  by  an  agent  holding  a  note 
for  collection  merely,  a  defendant  may  make  such  defense 
thereto  as  he  might  have  made  in  an  action  by  the  owner.' 
"While  a  person  cannot  set  up  his  own  neglect  to  defeat  an  in- 
nocent person,*  yet,  where  the  parties  to  a  note  founded  on 
fraud  are  i?art{ceiys  (yinminis,  the  defendant  may  prove  the 
fraud  and  defeat  recovery.'  As  against  a  hona  fide  holder 
it  is  no  defense  that  a  note  has  been  fraudulently  diverted 
from  the  purpose  for  which  it  was  given.^  An  answer 
by  an  indorsee  alleging  that  the  indorsement  was  for  the 
accommodation  of  the  plaintiff  and  prior  indorsee,  without 
consideration,  and  that  the  prior  indorser  received  the  only 
consideration  which  passed,  which  was  the  taking  up  of  a  prior 
note  between  the  same  parties,  indorsed  by  the  plaintiff, 
sufficiently  sets  forth  an  accommodation  indorsement.^  It 
has  been  held  to  be  a  good  defense  that  a  note  was  given  for 
furniture  which  was  to  be  used  in  a  house  of  prostitution.^ 

It  is  provided  by  statute  in  some  states  that  corporations 
of  a  sister  state  must  file  a  statement  of  their  capital  stock, 
the  kind  of  business  transacted,  and  appoint  a  general  agent 
upon  whom  service  of  process  can  be  made,  if  they  have  no 
general  office  within  the  state,  and  also  file  a  sworn  copy  of 
their  articles  of  corporation  with  the  secretary  of  state  or 
other  officer,  and  procure  a  certificate  authorizing  them  to  do 
business,  before  they  can  maintain  an  action.^  In  an  action  by 
an  indorsee  of  a  note  before  maturity  against  the  maker,  an 
answer  which  alleges  that  the  payee  is  an  agent  of  a  foreign 
corporation  Avhich  has  not  complied  with  a  statute  requiring 

1  Winchell  v.  Crider,  29  O.  S.  480.  »  Bradford  v.  Beyer,  17  O.  S.  389. 

2  Knox  Co.  Bank  v.  Lloyd,  18  O.  S.  6  Bank  v.  Hall,  44  N.  Y.  395 ;  Bank 
353.  V.  Watson,  42  K  Y.  490. 

s  Saulsbury  v.  Corwin,  40  Mo.  App.        <  Sims  v.  Frill,  1  Clev.  Rep.  337. 
373.  8  Burns  v.  Seep,  4  W.  L.  B.  1067. 

<  Goudy  V.  Gebhardt,  1  O.  S.  262.  9  See  sec.  990. 


§§  329,  330.]  BILLS    AND    NOTES.  311 

such  agent  to  file  their  authority  with  the  proper  officer  as 
a  condition  precedent  to  tlieir  doing  business  within  the  state, 
which  does  not  allege  that  the  assignment  was  merely  color- 
able and  to  avoid  the  statute,  is  insufficient  and  subject  to 
demurrer.^ 

Sec.  329.  Defense  wheu  indorsed  or  delivered  before 
maturity. —  In  an  action  by  an  indorsee  on  a  note  or  bill  in- 
dorsed or  delivered  on  or  before  the  day  of  maturity,  a  de- 
fendant may  prove  payment  thereof  before  such  indorsement, 
if  the  plaintiff  had  notice  of  such  payment  before  he  received 
the  paper.2  While  a  hona  fide  holder  is  protected  against  de- 
fenses which  might  be  made  by  the  maker  against  the  original 
payee,  j^et  he  must  use  ordinary  care  to  prevent  the  transac- 
tion from  operating  to  the  prejudice  of  others.  It  is  incum- 
bent on  a  person  claiming  under  one  who  has  been  guilty  of 
positive  fraud  to  show  that  he  has  acted  honestly  and  without 
knowledge  of  the  fraud. ^  Paper  which  has  been  transferred 
before  due  to  a  creditor  in  payment  of  a  debt  cannot  be  im- 
peached in  his  hands  on  the  ground  that  the  maker  of  the 
note  procured  an  accommodation  indorsement  on  it,  unless 
the  creditor  had  knowledge  of  the  fraud.*  One  who  has  ob- 
tained notes  before  maturity  for  value,  with  notice  that  they 
have  been  obtained  by  fraud,  cannot  be  estopped  from  show- 
ing that  the  maker  had  before  purchase  informed  him  that 
the  notes  were  all  right,  and  would  be  paid  at  maturity,  if  at 
the  time  of  the  making  of  such  statements  the  maker  was 
ignorant  of  the  fraud.' 

Sec.  330.  Defense  when  indorsed  or  delivered  after  due. 
As  against  an  indorsee  of  notes  and  bills  which  have  been  in- 
dorsed after  maturity,  a  defendant  may  set  up  any  defense 
which  he  might  have  made  as  against  the  original  holder;^ 
and  as  against  such  indorsee  a  maker  may  show  that  he  is  not 
the  real  party  in  interest.^ 

iZink  V.Dick,  27  N.  E.  Rep.  633  <Kingsland  v.  Pryor,  33  O.  S.    19. 

(Ind.,  1891).  sSackett  v.  Kellar,  22  O.  S.  554. 

2  R.  S.,  sec.  3174  6  r.  s.,  sec.  3173 ;  Baker  v.  Kinsey, 

3  McKesson  v.   Stanberry,  3  O.   S.  41  O.  S.  40a 

156;  Monroe  V.  Cooper,  5  Pick.  412;        'Osborn  v.    McClelland,  43  O.  S 
Woodhull  V.  Holmes,  10  John.  330.        284. 


312  BILLS   AND   NOTES.  [§  331. 

Sec.  331.  Defenses  —  Failure  of  consideration. —  As  a  ne- 
gotiable instrument  imports  consideration/  it  is  therefore  in- 
cumbent on  him  who  questions  it  to  plead  and  prove  failure 
therein.-  It  may  be  questioned  between  the  original  parties,' 
but  not  as  against  a  ho/ia  fide  purchaser  for  value  before  ma- 
turity.^ If  attacked  between  the  original  parties,  the  answer 
should  contain  a  statement  affecting  the  title  of  the  holder, 
although  a  defendant  is  entitled  to  the  benefit  of  any  infer- 
ences which  may  be  drawn  from  facts  stated  in  the  petition;* 
or  if  the  petition  shows  the  consideration  it  need  not  be  alleged 
in  the  answer.'  In  pleading  want  of  consideration,  as  a  gen- 
eral rule,  it  is  essential  that  the  fact  be  substantially  set  forth ; 
it  cannot  be  shown  under  a  general  denial,'  although  it  may 
sometimes  be  pleaded  in  general  terms.®  If  a  defendant  pleads 
want  of  consideration  in  geneyal  terms,  and  the  plaintiff,  with- 
out requiring  a  statement  of  the  facts,  joins  issue,  any  evidence 
is  admissible  which  tends  to  impeach  or  sustain  it.^  An  an- 
swer alleging  that  a  note  was  obtained  by  fraudulent  repre- 
sentations, without  stating  what  the  representations  were,  is 
not  good.^^  If  an  answer  claims  that  there  is  no  consideration 
and  that  the  note  was  fraudulently  transferred,  the  plaintiff 
must  then  show  that  he  received  it  for  value;"  and  it  should 
be  averred  that  the  plaintiff  had  full  knowledge  of  the  fraud.'^ 

'^Ante,  sec.  297.  Hammond  v.  E)ile,  58  How.  Pr.  426; 

2  Long  ▼.  Spencer,  78  Pa.  St  303;  Moore  v.  Alston,  17  S.  W.  Rep.  1117 
James  v.  Chalmers,  6  N.  Y.  209;  (Tex.  App.,  1891);  Herman  v.  Gray,  79 
Trustees  v.  Hill.  12  la.  462 ;  Sawyer  v.  Wis.  182.  Where  consideration  is  de- 
Vaughn,  25  Me.  337 ;  Brown  v.  Kin-  nied,  the  plaintiff  should  sustain  his 
eey,  81  N.  C.  245.  case  by  producing  the  note.     Lang- 

3  Eastman  v.  Shaw,  65  N.  Y.  522 ;  horst  v.  Dodlee.  5  W.  L.  B.  933. 
Patten  v.  Pearson,  55  Me.  39.  ^  Beard  v.   Lofton,    102    Ind.   408. 

4  Eahm  v.  Bridge  Co.,  16  Kan.  530 ;  See  Evans  v.  Stone,  80  Ky.  78.  A 
Bank  v.  Chapin,  8  Mete.  40 ;  Mat-  general  answer  of  no  consideration 
thews  V.  Crosby,  56  N.  H.  21.  has  been  held  sufficient     Swope  v. 

5  Gebhardt  v.  Sorrels,  9  O.  S.  461.  Fair,  18  Ind.  300 ;  Evans  v.  Williams, 

6  Tyler  t.  Borland,  17  Ind.  298.  60  Barb.  346. 

1  Fiybarger  v.  Cockefair,  17   Ind.  ^  Chamberlain  v.  Railroad  Co.,  15 

404:  Moss  v.  Western  Printing  Press,  O.  S.  225. 

64  lud.  125;  Swope  v.  Fair,  18  Ind.  lo  Catlin  v.  Home,  34  Ark.  169. 

300 :  Dubois  v.  Hermance,  56  N.  Y.  "  Davis  v.  Bartlett  12  O.  S.  534 

673;  Billan  v.  Hercklebarth,  23  Ind.  i^  Weissenagle   v.  Powers,  1  Clev. 

71 ;  Hunter  v.  McLaughlin,  43  Ind.  Rep.  141. 
88;   Smith  v.   Flack,    95   Ind.   116; 


§§  332-334.]  BILLS     \ND    NOTES.  313 

Partial  failure  of  consideration  will  not  bar  the  action  by  con- 
tradicting the  terras  of  the  note,  but  ma}'  be  shown  as  a  de- 
fense only  to  the  extent  of  injury  sustained  thereby  by  way 
of  recoupment  for  damages  or  abatement  of  plaintiff's  claim.* 
The  defense  of  illegality  of  consideration  is  placed  upon  the 
same  footing,  and  the  facts  must  be  specifically  set  forth  and 
cannot  be  shown  under  an  answer  of  no  consideration.^  A 
denial  of  the  execution  of  a  note  and  also  a  claim  of  want  of 
consideration  may  be  made  in  the  same  answer." 

ANSWERS FOKMS BILLS. 

See.  332.  Answer  of  unauthorized  acceptance. — 

\_Captlon.'\ 

That  the  bill  mentioned  in  the  petition  was  accepted  with- 
out the  authority  or  consent  of  the  defendants,  out  of  the 
course  of  their  regular  business,  and  without  consideration  to 
them,  in  their  name  by  one  C.  D.,  who  then  and  there  fraudu- 
lently pretended  to  act  under  their  authority,  but  in  fact  hav- 
ing no  authority  to  accept  the  same. 

Sec.  333.  Answer  of  payment  before  indorsement. — 

]^Capiion.'] 

That  after  the  bill  mentioned  in  the  petition  was  due,  and 
while  the  said  [drawer]  was  the  holder  thereof,  and  before 
this  action  was  brought,  this  defendant  paid  the  same  in  full 
to  said  [drawer],  and  after  said  payment,  and  not  before,  said 
[drawer]  indorsed  said  bill  to  the  plaintiff. 

Note  —  An  indorsement  of  payment  being  regai'ded  as  prima  facie  true, 
the  burden  of  proof  is  on  liim  who  disputes  it  Kline  v.  Prindle,  W.  444. 
Where  a  note  or  bill  is  made  payable  to  several  persons  who  are  not  in 
partnership,  an  indorsement  of  payment  by  one  will  not  therefore  bind 
the  other  payees ;  neither  can  transfer  tlie  contract  by  his  individual  indorse- 
ment.    Conahan  v.  Smith,  2  Disn.  13. 

Sec.  3:M.  Answer  of  acceptance  for  accommodation  of 
plaintiff. — 

{^Caption.'] 

That  he  accepted  the  bill  set  forth  in  the  petition  for  the 
sole  accommodation  of  the  plaintiff,  and  that  there  was  no 

1  Holzworth  V.  Koch.  26  O.  S.  33 ;  Lyts  v.  Keevey,  32  Pac.  Eep.  534 
Black  V.  Ridgeway,  131  Mass.  80;  (Wash.,  1893);  Bliss  on  Code  Pldg., 
Morgan  v.  Fallenstein,  27  III.  31 ;  sec.  330 ;  Gushee  v.  Leavitt,  5  Cal.  160 ; 
Petillo  V.  Hopson,  23  Ark.  196 ;  Moore  Finley  v.  Quirk,  9  Minn.  194.  See 
v.  Boyd,  95  Ind.  134.  Buller  v.  Edgenon,  15  Ind.  15;  Evana 

2  May  V.  Burras,  13  Abb.  N.  C.  384 ;  v.  Williams,  60  Barb.  346 ;  Casad  ▼. 
Mathews  v.  Leaman,  24  O.  S.  615 ;  Holdridge,  50  Ind.  529. 

Railroad  Co.  v.  Miller,  3  Minn.  661 ;        3  Pavey  v.  Pavey.  30  O.  S.  600, 


314  BILLS    AND    NOTES.  [§§  335-337. 

value  or  consideration  for  the  acceptance  or  payment  thereof 
by  this  defendant. 

Note. —  It  cannot  be  urged  as  a  defense  in  an  action  against  the  acceptor 
of  a  draft  that  the  same  was  accepted  for  the  accommodation  of  the  drawer 
(Davis  V.  Randall,  115  Mass.  547 ;  S.  C,  15  Am.  Rep.  146);  nor  that  he  signed 
the  bill  to  enable  the  party  to  raise  mouey  and  he  used  it  to  pay  a  debt, 
Comstock  V.  Hier,  29  Am.  Rep.  142 ;  Feliers  v.  Bank,  7  Am,  Rep.  225.  In 
the  absence  of  an  understanding  to  that  effect,  drawers  and  acceptor  are 
not  co-sureties  for  the  payees  or  liable  to  contribution.  Barnet  v.  Beall, 
29  O.  S.  7.  See  Williams  v.  Bosson.  110.  02.  An  accommodation  indorser 
maj"  make  any  defense  which  the  maker  could.  Sawyer  v.  Chambers,  44 
Barb.  42.  There  must  be  a  valuable  consideration  to  make  the  writer  of  a 
letter  of  credit  liable  upon  an  implied  acceptance  or  an  agreement  to  ac- 
cept   Shervvin  v.  Brigham,  39  O.  S.  137. 

ANSWEES FORMS  —  NOTES. 

Sec.  335.  Answer  denying  ol)ligatiou  as  maker,  claiming 
that  of  accommodation  indorser. — 

[^Caption.'] 

Defendant  says  that  when  the  note  was  executed  he  refused 
to  assume  the  obligations  of  a  maker,  but  did  assume  the  ob- 
ligation of  an  indorser,  and  onl}?-  those  of  an  indorser,  and 
accordingly  wrote  his  name  on  the  back  of  the  note  as  such 
indorser,  without  any  other  consideration  than  that  of  accom- 
modating L.,  all  of  which  the  original  parties  to  the  whole 
note  knew. 

Wherefore  he  prays  to  be  dismissed,  with  his  costs. 

Note. —  From  Seymour  v.  Seymour,  10  O.  S.  285, 

Sec.  336.  Answer  of  indorser  setting  up  yerlbal  agree- 
ment as  to  indorsement. — 

That  before  said  note  became  due  and  payable  said  E.  P., 
the  payee  thereof,  indorsed  said  note  in  blank,  and  delivered 
the  same  to  this  defendant,  and  this  defendant  indorsed  and 
delivered  the  same  to  the  Society  for  Savings,  for  collection 
only.  That  he  never  placed  his  name  on  the  back  of  said 
note  with  the  intention  of  becoming  liable  on  the  same  in  any 

manner  whatever.     That  on  or  about  the  day  of , 

18 — ,  he  sold  and  delivered  said  note  to  said  plaintiff,  and  it 
was  then  expressly  agreed  and  understood  by  and  between 
plaintiff  and  this  defendant  that  this  defendant  should  not 
indorse  said  note  or  be  liable  thereon  as  an  indorser.  That 
this  defendant  at  that  time  intended  to  erase  his  name  from 
said  note,  which  he  neglected  to  do. 

NoTK—  From  Hudson  v.  Wolcott,  39  O.  S,  618. 

Sec.  337.  Answer  denying  execution  and  setting  np  want 
of  consideration  —  A  mere  gift. — 

For  answer  and  defense  in  this  case  the  said  A.  B.  J.,  as 
administrator  as  aforesaid,  says: 

1.  That  he  denies  that  the  said  J.  A.  J.  made  or  delivered 


§§  338,  339.]  BILLS   AND   NOTES.  315 

the  promissory  note  in  the  petition  mentioned,  and  prays 
judgment. 

2.  That  if  the  signature  of  said  J.  A.  J.  to  said  note  was 
the  genuine  signature  of  decedent,  the  said  note  was  wholly 
without  consideration,  and  was  not  delivered  to  the  alleged 
payee  thereof  until  after  the  death  of  decedent,  or  at  all,  and 
the  same  was  a  mere  gift,  if  the  same  was  ever  delivered ;  and 
defendant  further  says  that  the  said  J.  C.  S.  and  the  said 
plaintiff  were  not,  nor  was,  nor  is,  either  of  them,  the  bona  fide 
holder  for  value  of  said  note,  and  are  not  entitled  to  recover 
thereon,  and  defendant  therefore  prays  judgment. 

Note.—  Pleading  alternative  defense  is  proper.  Bank  v.  Clossen,  29  O.  S. 
78.  See  ante,  sees.  21,  2"2.  Defendants  proving  want  of  consideration  and 
fraudulent  transfer  of  note,  it  is  incumbent  on  plaintiff  to  show  that  he 
received  the  note  for  valuable  consideration.     Davis  v.  St  John,  12  O.  S,  534. 

Sec.  338.  Answer  that  note  was  purchased  with  notice 
that  it  was  mere  accommodation  paper. — 

Defendant  says  that  if  said  promissory  note  in  the  petition 
described  was  executed  and  indorsed  in  manner  and  form  as 
in  the  petition  alleged,  the  same  was  made,  executed  and  de- 
livered for  the  individual  purposes  and  accommodation  of 
R  A.  W.,  who,  the  defendant  avers,  is  the  identical  person 
as  R.  A.  W.  whose  name  it  is  in  the  petition  alleged  appears 
thereon  as  having  signed  the  name  of  this  defendant  as  maker 
of  said  promissory  note,  and  as  an  indorser  thereon,  and  not  in 
any  business  transaction  connected  with  the  management  of 
defendant's  affairs.  The  defendant  further  avers  that  at  the 
time  the  plaintiff  purchased  said  promissor}^  note,  if  it  pur- 
chased it  at  all,  it  well  knew  the  same  to  be  mere  accommo- 
dation paper,  executed,  indorsed  and  delivered  for  the  indi- 
vidual purposes  and  benefit  of  the  said  E.  A.  W.,  and  that  no 
consideration  therefor  moved  to  the  defendant  from  the  plaint- 
iff, nor  from  any  person  or  source  whatsoever,  and  that  this 
defendant  had  no  power  in  law  to  issue  such  accommodation 
paper,  and  that  the  said  R.  A.  W.  had  no  authority  from  this 
defendant  to  execute  the  same. 

In  consideration  of  the  facts  stated  in  its  two  foregoing 
defenses,  the  defendant  says  it  is  not  indebted  to  the  plaintiff 
in  the  sum  claimed  in  the  petition  nor  in  any  other  amount 
whatsoever,  and  prays  the  court  to  be  hence  dismissed  with 
its  costs. 

Sec.  339.  Answer  that  consideration  failed  by  reason  of 
failure  of  title  to  property. 

\_Caption.'\ 

That  the  promissory  note  set  forth  in  said  petition  was 

given  for ,  which  the  plaintiff  sold  and  delivered  to  the 

defendant,  and  for  no  other  consideration  whatever. 

That  the  plaintiff  had  no  title  to  said at  the  time  he 


316  BILLS  AND  NOTES.  [§§  340-342. 

sold  and  delivered  the  same  to  the  defendant,  but  it  was  the 

property  of  K.  F.,  who  on  the day  of .  18 — ,  claimed 

said  property  and  recovered  the  same  in  an  action  of  replevin. 
That  the  defendant  has  therefore  received  no  consideration 
for  said  note. 

Sec.  340.  Answer  that  note  was  given  for  gambling. — 

That  before  the  making  of  the  said  promissory  note  set 
forth  in  said  petition,  the  said  plaintiff  and  the  said  defendant 
played  together  at  a  g'ame  called,  etc.,  for  divers  sums  upon 
credit,  and  not  ready  money;  and  the  said  plaintiff  at  said 
game  won  of  the  said  defendant,  and  the  said  defendant  then 

and  there  lost,  the  sum  of dollars,  whereof  no  part  was 

then  and  there  paid  by  the  said  defendant  to  the  said  plaint- 
iff; and  afterwards,  to  wit.  on  the da}^  of ,  18 — ,  the 

said  defendant  gave  and  made  to  the  said  plaintiff  the  afore- 
said promissory  note  for  the  said  sum  of  money  so  lost  by  the 
said  defendant  and  won  by  the  said  plaintiff  at  the  said  game, 
and  for  no  other  consideration  whatever,  by  reason  whereof 
the  said  note  is  void  in  law. 

Sec.  341.  Answer  that  consideration  was  for  a  patent- 
right. — 

That  the  plaintiff  purchased  said  note  on  or  about  the 

day  of ,  18 — ,  and  after  said  note  had  become  due. 

That  said  note  was  made  and  delivered  by  the  defendant  to 
R.  F.  in  consideration  of  a  certain  patent-right  for  a  pretended 
improved  buggy  spring  which  said  R.  F.  represented  was  a 
new  and  valuable  improvement  in  buggy  springs,  and  of  the 
value  of  S ,  and  the  defendant,  relying  upon  said  repre- 
sentations, purchased  said  patent-right  of  said  R.  F.  and  made 
and  delivered  to  him  the  note  in  question,  the  sole  considera- 
tion therefor  being  said  patent-right. 

That  said  patent-right  was  void  for  want  of  novelty,  and  no 
improvement  whatever  on  former  methods  of  preparing  buggy 
springs,  as  said  R.  F.  well  knew  at  the  time  of  said  sale,  and 
was  of  no  value  whatever,  and  the  defendant  has  received  no 
consideration  for  said  note. 

NOTK—  R  S.,  sec.  3178.  A  useless  patent  is  not  a  good  consideration. 
Fallis  V.  Griffith,  W.  303. 

Sec.  342.  Alteration  of  notes. —  Where  a  note  is  signed  in 
blank,  with  marginal  figures  indicating  the  amount  for  which 
it  is  to  be  filled,  and  the  party  to  whom  it  is  indorsed  alters 
the  figures,  the  simple  fact  of  alteration  does  not  vitiate  the 
note,  although  the  person  so  signing  the  blank  note  is  a  surety 
and  known  to  the  payee  to  have  signed  it  as  such.^    A  blank 

1  Schry  ver  v.  Hocks,  22  O.  S.  308. 


§  34:3.]  BILLS    AND   K0TE3.  317 

signature  has  the  effect  of  a  general  letter  of  credit ;  and 
when  a  person  intrusts  a  liote  to  another  to  fill  in  the  amount, 
he  is  liable  to  the  amount  that  may  be  inserted,  even  though 
there  be  a  private  agreement  between  the  signers  that  tho 
same  is  to  be  an  amount  certain;^  and  where  a  note,  com- 
plete excepting  the  stipulation  as  to  interest,  is  altered  by 
the  principal  maker,  before  its  delivery,  by  the  addition  of 
the  rate  of  interest,  it  is  such  a  material  change  as  will  re- 
lieve the  surety.-  If,  after  delivery  of  a  joint  and  several 
note,  the  name  of  a  third  person  be  added  as  a  maker  with 
the  privity  of  the  holder,  and  without  the  knowledge  of  the 
original  sisners,  it  is  void  as  to  the  latter.' 

See.  343.  Answer  denying  execution  of  note  —  That  it 
was  altered  after  execution  by  payee.— 

And  now  comes  the  said  defendant  S.  B.  M.  and  for  his  first 
defense  alleges  that  h?  did  not  make  and  deliver  the  promissory 
note  in  the  petition  described,  and  denies  each  and  every  alle- 
gation in  said  petition  contained. 

Defendant  for  his  second  and  further  defense  alleges  that 
he  made,  signed  and  delivered  a  certain  promissory  note  sim- 
ilar in  all  respects  to  the  said  note  set  up  by  plaintiff  in  his 
said  petition,  excepting  and  wanting  the  words  "to  be  paid 

annually  "  after  the  words  and  figures,  "  with per  cent. 

interest,"  whereby  defendant's  said  note  was  so  altered  as  to 
make  the  interest  therein  mentioned  payable  annually,  con- 
trary to  defendant's  original  and  only  note,  or  any  agree- 
ment, contract  or  knowledge  on  his  part ;  that  by  the  altera- 
tion of  defendant's  said  note  as  aforesaid,  the  same  was 
changed  by  plaintiff,  or  by  some  person  at  his  request,  into  and 
the  same  became  the  identical  note  set  up  by  plaintiff  in  his 
said  petition,  which  note  last  aforesaid,  by  reason  of  the  altera- 
tion therein  contained,  is  not  a  note  made  or  executed  by  this 
defendant :  that  said  alteration  was  not  made  in  framing  said 
original  promissory  note  or  to  further  the  intention  of  the 
parties  thereto  or  any  of  them,  but  the  said  note  of  defendant 
was  altered  as  aforesaid  in  fraud  of  this  defendant's  rights. 

Wherefore  defendant  asks  that  plaintiff's  action  against  him 

iFullerton  v.  Stuiges,  4  O.  S.  529.         3  Wallace  v.  Jewell,  21  O.  S.   163; 

2Jonesv.  Bangs.  40  O.S.  139.     See  Gardner  v.    Walsh.  5  El.  &,  Bl.  84; 

McGiath  V.  Clark.  .56  X.  Y.  34;  Etna  Henry  v.  Coates,  17  Ind.  161 ;  Bowers 

Nat.  Bank  v.  Winchester,  43  Conn.  v.  Briggs,  20  Ind.  139;  Hall  v.  Henry, 

891 ;  Draper  v.  Wood.  112  Mass.  315  ;  19  la.  521 ;  Chadwick  v.  Eastman,  53 

Waterman  v.  Vos?.  43  Me.  504  :  Brad-  Me.  12 ;  Chappie  v.  Spencer,  23  Barb, 

ley  V.   Mann.  37   Mich.    1 ;    Trigg  v,  584 :  McCaughey  v.  Smith,  27  N.  Y. 

Taylor.  27  Mo.  24-5.  39;  Shipp  v.  Suggett,  9  B.  Mon.  a 


318  BILLS*  AND    NOTES.  [§§  344,  345. 

be  dismissed,  and  that  said  note  set  up  by  defendant  be  de- 
clared null  and  void,  and  that  this  defendant  may  go  hence 
without  day  and  recover  of  plaintiff  his  costs. 

Note.—  This  defense  was  made  in  Mills  v,  Vollrath,  27  W.  L.  B.  36,  the 
court  charging  that  if  the  note  was  made  by  a  party  not  interested  in  the 
note,  and  without  the  knowledge  or  consent  of  the  payee,  it  would  not  affect 
the  note ;  but  if  made  as  charged  in  the  answer  of  the  defendant  it  would  be 
a  material  alteration,  changing  the  effect  and  operation  of  the  note ;  and 
upon  such  note  as  changed  the  plaintiff  could  not  recover,  unless  the  altera- 
tion had  been  ratified  by  the  defendant  The  judgments  of  both  lower 
courts  being  affirmed,  this  feature  of  the  charge  evidently  was  approved  by 
the  supreme  court.  The  defense  will  be  good  in  cases  where  the  evidence 
will  prove  the  allegations,  though  it  did  not  in  the  above  case.  An  answer 
claiming  an  alteration  must  state  that  the  same  was  made  with  the  knowl- 
edge or  authority  of  plaintiff,  Humphreys  v.  Crane,  5  Cal.  173.  A  defend- 
ant may  make  as  many  defenses  as  he  has.  Bank  v.  Closson,  29  O.  S.  78. 
Under  a  denial  by  a  defendant  that  he  made  the  note  sued  upon,  evidence 
may  be  admitted  showing  that  the  note  had  been  altered  after  its  execution. 
Boomer  v.  Koon,  6  Hun,  645 ;  Andrews  v.  Bond,  16  Barb.  633.  See  Eckert 
V.  Pickel.  59  Barb.  545.  As  to  alteration  in  amount,  see  Pearson  v.  Hardin, 
54  N.  W.  Rep.  9U4. 

Sec.  344.  Answer  that  note  was  'altered  by  the  addition 
of  a  name. — 

That  he  made,  executed  and  delivered  to  the  said  W,  B.  S. 
a  promissory  note  in  all  respects  similar  to  the  alleged  prom- 
issory note,  a  copy  of  which  is  attached  to  the  plaintiff's  peti- 
tion, except  that  the  same  did  not  then  have  subscribed  thereto 
the  name  of  D.  D.  S.  as  maker  or  otherwise.  But  he  avers 
that  after  he  had  so  made,  executed  and  delivered  the  said 
note  and  the  same  had  become  a  perfect  and  completed  con- 
tract, the  holder  thereof,  without  the  knowledge,  authority 
or  consent  of  this  defendant,  fraudulently  caused  and  procured 
the  name  of  D.  D.  S.  to  be  subscribed  thereto  as  additional 
maker,  and  thereby  altered  and  changed  the  legal  operation 
of  the  note  and  contract  so  by  him  made,  executed  and  deliv- 
ered as  aforesaid. 

Wherefore  the  defendant  denies  that  he  made,  executed  or 
delivered  the  alleged  promissory  note  in  the  plaintiff's  peti- 
tion described,  or  that  the  same  is  his  contract. 

Note. —  The  signing  of  an  additional  name  of  a  third  person  as  maker, 
with  privity  of  the  holder,  and  without  the  consent  of  the  original  signer, 
is  a  material  alteration  of  the  note,  which  discharges  such  original  signer. 
From  charge  of  court  in  Smucker  v.  Wright,  Price.  J.,  Logan  Co.,  Ohio.  C.  P., 
from  which  answer  was  taken.  Evidence  as  to  alteration  may  be  admitted 
under  an  answer  denying  the  execution  of  the  note.  Boomer  v.  Koon,  6 
Hun,  645. 

Sec.  345.  Reply  that  note  was  purchased  in  nsual  course 
of  business,  etc. — 

The  plaintiff  denies  each  and  every  allegation  contained  in 
the  second  defense  as  stated  in  the  defendant's  answer. 

The  plaintiff  further  says  that  it  took  the  note  specified  in 
the  petition  from  the  defendant  in  the  regular  and  ordinary 


§  345.]  BILLS   A2sD   NOTES.  319 

course  of  its  regular  and  ordinary  business  as  such  bank ;  that 
it  took  said  promissory  note  as  aforesaid  before  the  same  was 
due  for  full  value  in  money  paid  therefor,  to  wit,  the  full  face 
value  of  said  note,  less  the  ordinary  bank  discount  charged  for 
commercial  paper  at  said  time ;  and  it  took  said  promissory 
note  as  aforesaid  without  any  notice  or  knowledge  whatever 
of  any  of  the  matters  stated  in  the  answer,  or  of  any  defenses 
or  equities  existing  against  the  same. 


CHAPTER  23. 


BONDa 


I 


Sec.  846. 

Parties  to  actions  on  bonds. 

Sec.  366. 

Petition    on    building-con- 

347. 

Rules  of  pleading  applica- 
ble to  all  bonds. 

tract  bond. 

348. 

Same  continued  —  Consid- 

ACTIONS ON  COUNTY  OFFICIAL  BONDS, 

eration. 

ETG 

349. 

Same  continued  —  Execu- 

Sec. 367. 

Petition      by     the      state 

tion  of  bond. 

through  the  prosecuting 

350. 

Same  continued — Demand. 

attorney  against  county 

351. 

Same      continued  —  Ap- 

officer and  his  bondsmen 

proval  of  bond. 

to  recover  money  illegally 

353. 

Same    continued  —  Aver- 

received. 

ment  of  damages. 

368. 

Petition  on  bond  of  clerk  of 

353. 

Same  continued  —  Joint  or 

court. 

several  liability. 

369. 

Petition  on  bond  of  county 

354 

Actions  on  administrator's 

recorder   for    negligence 

or  executor's  bonds. 

in  performance  of  duty. 

355. 

Petition    against    adminis- 

370. 

Action  on  sheriff's  bond. 

trator  for  maladministra- 

371. 

Petition  on  sheriff's  bond. 

tion. 

372. 

Petition  on   city  marshal's 

356. 

Petition  by  heir  on  admin- 

bond. 

istrator's  bond. 

373. 

Petition      on      constable's 

357. 

Petition  by  creditor  on  ad- 

bond —  For  failure  to  ac- 

ministrator's bond. 

count  for  money,  or  for 

358. 

Petition  by  succeeding  ad- 

failure to  levy,  or  for  ac- 

ministrator   on  bond  of 

cepting  insufficient  deliv- 

former administrator. 

ery  bond. 

359. 

Actions  on  appeal  bonds. 

374 

Petition  on  bond  of  justice 

360. 

Petition  on  appeal  bond. 

of  the  peace. 

361. 

Petition    on    appeal    bond 

375, 

Actions       on      guardian's 

where  one  of  sureties  is 

bond  —  Pleading. 

deceased. 

376. 

Petition  on  guardian's  bond. 

362. 

Petition    on    appeal    bond 

377. 

Petition  on  guardian's  bond 

from  justice. 

by  succeeding  guardian. 

363. 

Actions      on     attachment 

378. 

Actions      on       indemnity 

bonds. 

bonds. 

864  Petition     on     attachment 

379. 

Petition  on  indemnity  bond. 

bond  —  For  the  writ 

380. 

Actions      on       injunction 

365. 

Petition       on       redeliverj- 

bonds. 

bond  —  Attachment. 

381. 

Petition  on  injunction  bond. 

§  3i^!.] 


BONDS. 


321 


Sec.  382.  Petition  on  replevin  bond. 

383.  Petition  on  title  bond.. 

384.  Answers    and   defenses   to 

actions  on  bonds. 


Sec.  385.  Answer  of  surety  on  admin- 
istration bond  claiming 
an  equitable  set-off  against 
claim  of  distributee. 
386.  Answer  to  action  on  appeal 
bond. 


Sec.  346.  Parties  to  actions  on  bonds. —  The  provision 
that  actions  may  be  brought  in  the  name  of  the  real  party  in 
interest  is  applicable  to  actions  on  bonds.^  Any  person,  there- 
fore, who  is  injured  by  a  breach  in  a  bond,  or  who  is  by  law- 
entitled  to  the  benefit  of  the  security,  may  bring  an  action  in 
his  own  name  against  those  liable.-  It  is  held  that  the  state 
is  the  proper  party  plaintiff  in  an  action  upon  an  official  bond, 
such  as  a  treasurer's  bond.'  But  this  must  necessarily^  be 
confined  to  cases  where  the  state  only  is  interested,  and  not 
where  private  interests  have  intervened,  though  it  has  been 
held  in  North  Carolina  that  suits  upon  official  bonds  payable 
to  the  state  must  be  brought  in  the  name  of  the  state ;  that 
the  statute  requiring  the  real  party  in  interest  to  prosecute 
does  not  apply  in  such  cases.*  Upon  this  point  Mr.  Bates 
states  that  the  Ohio  reports  are  full  of  cases  by  individuals  on 
official  bonds  of  public  officers,  but  without  comment  on  the 
point.* 

The  correct  construction  to  be  placed  upon  section  4993  of 
the  code  is  believed  to  be  that,  in  all  cases  where  an  individ- 
ual has  suffered  an  injury  by  the  failure  of  an  official  to  per- 
form official  duty,  he  may  maintain  an  action  on  the  bond 
of  such  official.  The  provision  was  intended  to  obviate  the 
necessity  of  bringing  suit  in  the  name  of  the  state  for  the  use 
of  the  person  injured,*  It  has  been  held  that  official  bonds 
cannot  be  made  available  to  protect  private  interests  without 
statutory  provision;'  but,  as  before  stated,  section  4993  was 
enacted  for  this  purpose. 

Administration  bonds  are  made  payable  to  the  state,  but 


1  Ante,  sec.  8 ;  O.  Code,  sec.  4993. 

-  O.  Code,  sec.  4994. 

3  Kelly  V.  State,  25  O.  S.  567 ;  State 
V.  Kelley,  32  O.  S.  421.  See  form, 
sec.  367,  post;  Hunter  v.  Commis- 
sioner, 10  O.  S.  515. 


21 


*  Carmichael  v.  Moore,  89  N.  C.  29. 

5  Bates'  Pldg.,  p.  7. 

6  Aucker  v.  Adams,  23  O.  S.  543, 
by  private  person  on  bond  of  justice. 

estate  T.  Nichols,  8  Heisk.  657; 
Crews  V.  Taylor,  56  Tex.  461 ;  Fox  v. 
Thibult,  33  La.  Ann.  33. 


322  BONDS.  [§  347. 

legatees  or  those  interested  may  bring  suit  thereon.^  And 
persons  having  an  interest  in  the  damages  sought  to  be  recov- 
ered in  an  action  on  an  attachment  bond  are  proper  parties 
plaintiff.-  County  commissioners  may  bring  an  action  on  a 
clerk's  official  bond  for  the  recovery  of  unclaimed  costs.^  In 
an  action  against  the  surviving  obligors  of  an  official  bond 
the  personal  representatives  are  not  necessary  parties.^ 

Sec.  347.  Rules  of  pleading  applicable  to  all  bonds. — 
The  code  provides  that  an  action  may  be  prosecuted  on  a  cer- 
tified cop}?-  of  a  bond,  making  it  the  duty  of  the  custodian  to 
deliver  a  copy  to  any  person  claiming  to  be  injured  by  a 
breach  therein.^  The  purpose  of  this  provision  undoubtedly 
is  to  enable  a  "  real  party  in  interest "  to  procure  the  necessary 
facts  to  bring  suit.  The  manner  of  pleading  a  bond  is  well 
defined.  It  is  an  instrument  for  the  conditional  payment  of 
money,  and  is  generally  conceded  to  fall  within  section  5085 
of  the  code  as  an  evidence  of  indebtedness.^  The  precise 
question  has  probably  not  been  decided,  but  it  has  been  as- 
sumed in  a  number  of  cases  that  a  bond  falls  within  the  mean- 
ing of  an  "evidence  of  indebtedness,"'  If  it  be  conceded, 
therefore,  that  it  is  an  evidence  of  indebtedness,  a  copy  must 
be  attached  or  an  excuse  given  for  not  so  doing,®  The  rules 
of  pleading  heretofore  laid  down^  must,  however,  be  observed. 
It  should  be  remembered  that  the  copy  attached  cannot  sup- 
ply necessary  averments  in  the  petition,  or  serve  the  pur- 
pose of  a  statement  of  facts,^"  It  is  essential  that  all  the 
material  facts  be  stated  as  in  other  actions,"  which  must  nec- 
essarily be  confined  to  the  instrument  itself.  Great  particu- 
larity is  required  in  assigning  breaches  of  a  bond.  The  con- 
dition and  breaches  must  be  set  forth  with  such  certainty 

1  Mighton  T,  Dawson.  38  O.  S.  050.     der  section   117  (5085)  of  the  code. 

2  Alexander  v.  Jacoby,  23  O.  S.  358.     See,   also,   Gutridge  v.  Vanatta,    27 
^  State  T.  Orr,  16  O.  S.  522 ;  Com-    O.  S.  366. 

missioners  v.  Noyes,  35  O.  S.  201-6.  ^Ante,  sec.  57. 

•<  Hunt  V.  Gaylor.  25  O.  S.  620.  ^  Ante,  sec.  57. 

5  0  Code,  sec.  4994.  lOBentley  v.  Dorcas,  11  O.  S.  898; 

^Ante,  sec.  57.  Sargent  v.  Moore,  1  Disn.  99;  West 

'In  Bentley  v.  Dorcas,  11  O.  S.  398,  v.  Dodsworth.  1  Disn.  161;  Sprague 

a  copy   of  an  appeal  bond  was  at-  r.  Wells,  47  Minn.  504. 

tached,  not  as  part  of  the  petition,  n  Vilhac  v.  Railroad  Co.,  53  Cal.  209. 
but  as  evidence  of  indebtedness,  un- 


i 


§  347.]  BONDS.  323 

as  to  show  the  subject-matter,  the  character  and  the  extent  of 
the  obligation.' 

Judge  Swan  states  that  upon  a  bond,  contract,  and  in  like 
cases  where  the  instrument  relates  solely  to  the  facts  consti- 
tuting the  cause  of  action,  it  is  not  only  proper,  but  the  best 
mode,  to  allege  the  making  of  the  instrument,  and  then  set  it 
out  in  full  and  allege  the  breach.-  The  courts  have  not  en- 
tirely agreed  with  this  view.  It  has  been  declared,  in  sub- 
stance, not  to  be  good  pleading  to  make  written  instruments 
other  than  those  for  the  unconditional  payment  of  money 
part  of  the  pleading;  but  if  it  seems  necessary,  in  assigning 
the  breaches  of  a  bond,  to  substantially  set  out  the  whole  of 
it,  the  same  may  properly  be  copied  into  the  pleading,  and  the 
breaches  assigned.^  If,  therefore,  in  any  case  a  bond  is  copied 
into  the  pleading,  it  is  a  substantial  compliance  with  section 
5085  of  the  code,  thereby  dispensing  with  the  necessity  of  at- 
taching a  copy.^  But  we  do  not  think  the  court  intended 
to  favor  the  idea  of  copying  the  entire  instrument  into  the 
pleading  in  any  case,  as  it  has  been  otherwise  decided  that 
as  against  a  demurrer,  it  is  a  sufficient  allegation  of  a  breach 
to  set  forth  the  conditions  alleged  to  have  been  broken,  and 
aver  their  non-performance.' 

Where  there  are  several  breaches  assigned,  each  one,  taken 
in  connection  with  the  introductory  averments,  is  regarded  as 
a  separate  paragraph   stating  a  distinct  cause  of  action;"  and 

1  Supervisor  V.  Semler,  41  Wis.  374 ;  declaring  upon  a  bond  —  one  by  a 
State  V.  Coffey,  6  O.  S.  150;  Sargent  single  bill  without  noticing  the  con- 
V,  Moore,  1  Disn.  99.  dition,  and  the  other  to  set  out  the 

2  Swan's  Pldg.  199.  conditions  and  assign  the  breaches. 

3  Crawford  v.  Satterfield,  27  O.  S.  In  the  first  instance  the  defendant 
425.    See,  also,  sec.  57,  p.  61,  note.  must  crave  oyer  of  the  condition  and 

*  Ante,  sec.  57.     It  was  held  in  Gib-  plead  performance,  and  the  plaintiff 

son  V.  Robinson,  16  S.  E.  Rep.  969  reply    by    assignmg    the    breaches. 

(Ga.),  that  where  the  contents  of  a  Reynolds  v.    Hurst,  18  W.  Va.  648, 

bond  are  substantially  set  forth  it  is  citing  6  Rand.  227 ;  4  Munf.  494 ;   4 

not  necessary  to  attach  a  copy.  Rand.  413 ;  5  Munf.  246. 

5  Gutridge  v.  Vanatta,  27  O.  S.  366 ;  « State  v.  Roche,  94  Ind.  376 ;  Reno 
Governor  v.  White,  24  Am.  Dec.  v.  Tyson,  24  Ind.  56;  Colburn  v. 
768;  Hughes  v.  Miller,  5  Johns.  168:  State,  47  Ind.  310:  Bodeu  v.  Dill,  58 
Smith  V.  Jansen,  8  Johns.  Ill;  Post-  Ind.  273;  Mustard  v.  Hoppess, 69 Ind. 
master  v.  Cochran,  2  Johns.  413.  It  324.  And  a  demurrer  may  be  ad- 
is  said  that  there  are  two  modes  of  dressed  to  each  breach,  McFall  v.  Sew- 


524 


BONDS. 


[§  347. 


upon  a  general  demurrer  to  the  whole,  if  any  one  breach  is 
well  assigned,  the  demurrer  should  be  overruled.^  Recovery 
can  be  had  for  only  such  breaches  as  may  be  assigned  in  the 
petition.^  An  averment  that  the  defendants  and  each  of  them 
have  wholly  neglected  and  refused  to  pay  is  sufficient  to  show 
a  breach ; '  and  so  with  an  allegation  that  a  penalty  is  due 
and  unpaid;^  or  an  averment  that  an  administrator  or  an  ex- 
ecutor who  has  resigned  has  failed  to  pay  his  successor  the 
amount  found  due  from  him  on  settlement  fully  shows  a 
breach  of  the  condition  of  his  bond  "to  administer  according 
to  law ;  "  5  or  that  an  oflBcer  has  received  money  belonging  to 
another  which  he  retains  and  refuses  to  deliver  to  the  proper 
officer.^  In  an  action  against  the  sureties  of  a  negotiable 
bond  for  failure  to  collect  and  pay  over  money  on  execu- 
tion, it  should  be  averred  that  the  liability  occurred  during 
the  time  defendants  were  bounds  And  in  a  suit  upon  a  tax 
collector's  bond  for  failure  to  pay  ov^er  state  and  county  taxes, 
the  petition  should  designate  the  several  sums  which  belong 
to  the  state  or  county  treasury.^  Where  conditions  of  a 
bond  require  compliance  with  the  terms  of  another  obliga- 
tion, which  are  not  fully  stated  in  the  condition,  the  petition 
should  set  out  the  obligation  with  a  corresponding  breach.^ 
A  statutory  undertaking  should  be  considered  in  the  light 
of  the  statute  with  reference  to  the  state  of  the  pleadings  in 
the  action  in  which  it  was  given,^'  but  it  is  not  necessary  to 
set  out  the  law  under  which  a  bond  is  given,^^  although  a  peti- 
tion which  merely  states  that  a  bond  is  given  according  to  law, 
without  setting  out  the  conditions,  is  bad;^-  the  existence  of 
the  office,  and  the  appointment  or  election  of  the  officer,  should 
be  fully  set  forth."     And  in  a  suit  upon  an  official  bond  con- 


ing Machine  Co.,  90  Ind.  148 ;  Colburn 
V.  State,  47  Ind.  320;  Richards  v. 
State,  55  Ind.  381. 

1  People  V.  Gregory,  11  Bradw.  370. 

2  Colgate  V.  Roberts,  85  Ind.  464. 

3  Gardner  v.  Donnelly,  86  Cal.  367. 

4  Stanley  v.  Montgomery,  102  Ind. 
102. 

8  Slagle  V.  Entrekin,  44  O.  S.  637. 
8  Mendocino  Co.  v.  Morris,  33  CaL 
146. 


7  Commonwealth  v.  Hughes,  10  B. 
Mon.  160 ;  S.  C,  10  B.  Mon.  461. 

8  Whitfield  V.  Wooldridge,  23  Miss. 
183. 

9  Portage  Canal  Mfg.  Co.  v.  Crit- 
tenden, 17  O.  436. 

10  Secrest  v.  Barbee,  17  O.  S.  425. 
n  Mason  v.  Montgomery,  W.  722. 

12  Bisack  v.  Pape,  1  W.  L.  B.  126. 

13  Common  Pleas  Court  v.  Sergent, 
W.  483. 


§§  348,  349.]  BONDS.  325 

ditioned  to  pay  over  all  money  which  may  come  into  the 
hands  of  an  officer,  an  averment  that  he  received  certain 
money  belonging  to  the  plaintiff  which  he  failed  to  pay 
over  sufficiently  shows  that  such  money  was  received  by 
virtue  of  his  office ;  ^  but  an  allegation  that  a  marshal  under 
a  writ  of  replevin  seized  and  took  property,  claiming  under 
and  by  virtue  of  a  writ  of  replevin,  is  not  sufficient:  it 
should  be  averred  that  the  officer  is  acting  under  a  valid  process 
and  not  claiming  to  so  act.^  In  an  action  on  a  negotiable 
bond  for  illegality  and  insufficiency  of  a  return  made  by  an 
officer,  the  petition  should  show  the  return  which  is  alleged  to 
be  illegal  and  insufficient.^  In  an  action  on  the  bond  of  a 
sheriff  it  should  be  alleged  that  it  was  the  official  bond  of  the 
sheriff,  and  enough  of  it  should  be  set  forth  to  show  that 
those  who  signed  it  were  bound  to  indemnify  all  parties  in- 
jured by  the  sheriff's  misfeasance.^  Where  the  petition  is  for 
failure  to  levy  an  execution  on  chattels,  it  should  be  averred 
that  they  were  within  the  officer's  bailiwick.^ 

Sec.  348.  Same  continued  —  Consideration. —  It  being  a 
rule  that  sealed  instruments  import  consideration,  it  need  not 
be  averred  in  the  petition ;  and  bonds,  although  private  seals 
have  been  abolished  in  Ohio,  fall  under  this  class."  "Bond  or 
writing  obligatory"  implies  an  instrument  under  seal  and 
therefore  a  consideration.^ 

Sec.  349.  Same  continued  —  Execution  of  bond.—  In  fram- 
ing a  petition  it  need  not  be  averred  that  'the  parties  signed 
the  bond  or  that  it  was  given  in  pursuance  of  statute.^  A 
petition  averring  the  execution  of  a  bond  by  both  principal  and 
surety,  containing  a  copy  thereof  which  does  not  give  the  sig- 
nature of  the  principal,  will  in  the  absence  of  objection  be 
good.*'  And  an  allegation  that  the  defendants,  "  by  their  cer- 
tain writing  obligatory,  sealed  by  their  seals,  became  bound  unto 

1  Buildiug  Ass'n  v.  Cummings.  45  Bildersee  v.  Aden,  12  Abb.  Pr.  (N.  S.) 

O.  S.  664.  324 ;  Doolittle  v.  Dininny,  31  N.  Y. 

2 Geiber  v.  Ackley,  37  Wis.  4-3.  350. 

3  Graham  v.  State,  6  Blackf.  32.  '  Paddock  v.  Hume,  6  Oreg.  82. 

4  Ghiraldelli  v.  Bourland,  33  Cal.  ^Shaw  v.  Tobias,  3  N.  Y.  188;  Mc- 
585.  Milian  v.  Dana,  18  Cal.  339. 

5  State  V.  White,  88  Ind.  587.  9  Mendocino  Co.  v.  Morris,  33  Cal. 

6  Johnson  v.  Ackerson,  40  How.  Pr.  145. 
222;  Harrison  v.  Utley,  6  Hun,  565; 


326                                           BONDS.  [§  350. 
in  the  sum  of  | ,  for  the  just  payment  of  which 


they  bound  themselves,"  is  a  sufficient  averment  of  execution.' 
A  petition  alleging  that  a  defendant  executed  a  bond,  which 
contains  a  copy  thereof,  is  a  sufficient  averment  of  delivery;* 
and  so  with  an  allegation  that  an  undertaking  was  executed 
by  a  defendant  when  there  is  no  denial  thereof  in  the  answer.* 
Sec.  350.  Same  coutiiiued  —  Demand. —  It  is  the  better 
practice  in  actions  on  the  bond  of  a  particular  officer  to  follow 
the  statute  in  reference  thereto  and  allege  in  the  petition  all 
steps  necessary  to  be  taken  to  make  the  bond  binding.* 
Whether  or  not  it  is  necessary  to  allege  that  demand  has 
been  made  depends  largely  upon  the  bond  or  upon  the  duty 
and  liability  of  the  officer  in  the  particular  case.  If  the  bond 
provides  that  payment  is  to  be  made  on  demand,  it  must  be 
so  averred  in  order  to  state  the  cause  of  action ;  *  as  where  an 
appeal  bond  {)rovides  that  a  demand  for  all  costs  and  damages 
should  be  made,^  or  where  an  action  lies  on  a  bond  of  an 
officer  for  withholding  money,  a  demand  or  excuse  for  want 
of  it  is  necessary,  as  it  cannot  be  withheld  until  refusal.^ 
Under  the  statute  as  to  executions  against  property,  a  sheriff 
must  pay  money  collected  by  him  to  the  judgment  creditor 
upon  demand  made  therefor,'^  and  it  is  not  necessary  that  the 
demand  be  made  on  him  during  the  term  of  office  at  which 
the  money  was  received.®  The  question  becomes  particularly 
important  when  considered  with  reference  to  the  limitation 
of  actions,  it  being  necessary  in  some  cases  that  demand  be 
made  before  an  action  accrues,  and  hence  the  statute  will  run 
from  the  time  when  such  demand  is  made.^" 

1  State  V.  Rush,  77  Mo.  586.  Bank   v.  Livingston,  2  John.  Cases, 

2  Insurance  Co.  v.  Rogers,  30  Barb.     409. 

491.  ^  Douglass  v.  Rathbone,  supra. 

3  Robert    v.  Good,   36   N.   Y.    408.        '^  State  v.  Cowles,  5  O.  S.  87. 
Averment  of  execution  imports  de-        s  fj.  S.,  sec.  5396. 

livery.     2  Saudf.  Ch.   400.     Signing  SKing    v.    Nichols,    16  O.   S.   80; 

need  not  be  averred  —  sealing  and  de-  Brobst    v.   Skillen.    16    O    S.    382; 

livery  only,  as   that  determines  its  Sidner  v.  Alexander.  31  O.  S.  878. 

validity.    Mason    v.    Montogomery,  ^'Gill  v.  Cooper,  111  N.  C.  311;  16 

W.  723.  S.  E.  Rep.  316  (1892) ;  Keithler  v.  Fos- 

<  As  in  State  v.  Newell,  2  O.  C.  C.  ter,    22  O.  S.  27 ;  El  Dorado  Tp.  v. 

204.  Gordon,  50  Kan.  307 ;  33  Pac  Eep.  33 

»  Douglass  V.  Rathbone,  5  Hill,  143 ;  (1893;. 


I 


§§  351,  352.]  BONDS.  327 

Sec.  351.  Same  continued  —  Approval  of  bond. —  It  is 

held  that,  so  far  as  the  liability  of  sureties  on  a  bond  is  con- 
cerned, it  is  immaterial  whether  the  same  be  approved  or  not. 
It  would  therefore  follow  that  it  is  unnecessary  to  make  an 
allegation  as  to  approval.^  Yet  the  statement  heretofore 
made  as  to  the  execution  and  delivery  of  a  bond  would  be 
equally  applicable  to  the  approval  thereof,  and  it  would  seem 
to  be  better  practice  to  aver  that  the  same  has  been  ap- 
proved.2  But  no  averment  of  approval  of  an  injunction 
bond  by  the  clerk  is  necessary  where  the  statute  requires  no 
such  indorsement,  although  an  allegation  that  it  was  executed 
in  pursuance  of  an  order  of  court,  and  filed  with  the  clerk  and 
an  injunction  issued,  shows  a  sufficient  approval.*  Under  an 
averment  that  a  bond  of  a  justice  was  approved  by  two  trust- 
ees, if  nothing  appears  to  the  contrary  it  will  be  presumed  to 
have  been  approved  at  a  meeting  of  the  trustees.* 

Sec.  35*2.  Same  continued  —  Ayerment  of  damages.—  Care 
should  be  exercised  in  framing  allegations  as  to  damages  sus- 
tained; as,  for  example,  in  an  action  on  a  bond  conditioned 
that  a  house  should  be  erected  according  to  specifications,  and, 
in  case  of  failure  to  complete  the  same,  recovery  should  be 
had  upon  the  bond,  the  plaintiff  cannot  recover  more  than 
nominal  damages  unless  he  avers  that  he  has  sustained  actual 
injury.'  But  where  a  bond  provides  that  in  case  of  a  breach 
"the  penalty  therein  written  shall  be  taken  and  deemed  as 
liquidated  damages,"  it  is  not  necessary  to  aver  or  prove 
actual  damages.^  The  damages  which  may  be  recovered  b}'^ 
reason  of  attorneys'  fees  in  suits  upon  an  injunction  bond 
are  those  which  are  necessarily  incurred  in  obtaining  a  dis- 
solution of  the  same.'     A  bond  is  good  though  the  conditions 

1  McCracken  v.  Todd,  1  Kan.  48 ;  In  this  case  he  should  liave  alleged 
People  V.  Evans,  29  Cal.  429 ;  Mendo-  that  he  had  completed  the  house  and 
cine  Co.  V.  Morris,  32  Cal.  145.     It  is    incurred  expense. 

for  the  benefit  of  the  public,  and  its  « Stanley  v.  Montgomery.  102  Ind. 

omission  is  no  defense   to  the  sure-  102. 

ties.     Bates'  Pldg.  359,  citing  3  Maas.  7  Noble  v.  Arnold,   23   O.    S.  264 ; 

86 ;  22  O.  317.  Riddle    v.    Cheadle,   25    O.    S.    278. 

2  See  State  v.  Newell,  2  O.  C.  C.  Upon  questions  of  damages,  see  Hill- 
204;  ante,  sec.  349.  y^  v.  Richards,  13  O.  135;  Lawton 

3  Williamson  v.  Hall.  1  O.  S.  196.        v.  Gipeu.  64  X.  Y.  3'2I) :  Raupman  v.  . 
<  Place  V.  Taylor,  22  O.  S.  317.  Evausville.   44    Ind.    392;  Reece    v, 
sSprague  v.  Wells,  47    Minn.  504.     Peltzer,  1  III.  App.  215. 


328  uoNDS.  [§§  353,  354. 

are  substantially  set  forth  as  required  by  statute;  and  it  is  a 
well-settled  rule  of  construction  that  a  surety  is  liable  only 
upon  the  strict  letter  of  his  bond.^  In  a  suit  on  a  sheriff's 
bond  for  failure  to  levy  and  return  execution,  nominal  dam- 
ages only  can  be  recovered  unless  the  facts  averred  sufficiently 
show  actual  damage." 

Sec.  353.  Same  continued  —  Joint  or  several  liability. — 
In  determining  whether  a  right  of  action  on  an  undertaking 
be  joint  or  several,  the  terms  of  the  bond  and  the  provisions 
of  the  statute  under  which  it  is  given  must  be  considered. 
The  terms  of  the  statute  are  regarded  as  part  of  the  bond,  as 
if  embodied  therein;"  and  if  the  statute  authorizes  a  joint 
suit  against  all  the  obligors  on  a  bond,  a  court  can  render  a 
several  judgment  against  one  or  more  of  the  defendants, 
leaving  the  execution  to  proceed  against  the  others.*  All 
obligees  in  a  joint  bond  must  join  in  an  action  thereon,  or 
allege  an  excuse  for  not  so  doing,  or  the  non-payment  of  the 
debt.^  Where  a  joint  bond  is  given  by  two  administrators 
and  the  property  belonging  to  the  estate  goes  into  their  joint 
possession,  and  waste  is  committed  by  one  after  the  death 
of  the  other,  the  estates  of  both  must  be  exhausted  before 
suit  can  be  brought  ag-ainst  the  sureties  on  their  bond.® 

Sec.  351.  Actions  on  administrator's  or  executor's  bonds. 
It  is  provided  by  statute  that  a  creditor  when  entitled  to 
payment  of  his  debt,  and  the  amount  has  been  allowed  or 
ascertained  by  judgment  or  by  an  order  of  distribution,  may, 
after  having  made  a  demand  upon  such  administrator  or  exec- 
utor, institute  suit  upon  the  bond  given. ^  An  administra- 
tor de  horns  non  may,  however,  maintain  an  action  upon  a 
bond  of  a  deceased  administrator  without  having  the  amount 
due  the  estate  ascertained  by  the  finding  or  judgment  of  a 

1  Smith  V.  Hensman,  30  O.  S.  662 ;  6  Eckert    v.    Myers,   45   O.  S.  525. 

Lang  V.  Pike,  27  O.  S.  498 ;  Hall  v.  See  Burgoyne  v.  Life  Ins.  Co..  5  O.  S. 

Williamson.    9   O.    S.    23;    Ma  ice  v.  586;  Jamison  v.  Lillard,  12  Lea,  690; 

Byrnes,  7  W.  L.  B.  345.  Babcock   v.  Hubbard,  2  Conn.  536 ; 

!*  State  V.  Dixon,  80  Ind.  150.  Dobyns  v.  McGoverus,   15  Mo.  662 ; 

3  Alexander  v.   Jacoby,   23    O.    S.  Boyd  v.  Boyd,  1  Watts,  365 ;  Stephens 

358,  384.  v.  Taylor,  62  Ala.  269. 

.  *  Aucker  t.  Adams.  ,.  O.  S.  543.  'B.  S.,  sec.  6210. 

5. Strange  v.  Floyd,  9  Gratt  474. 


§  354.]  BONDS.  S29 

court.^  An  allegation  in  a  petition  by  a  creditor  that  a  claim 
has  been  allowed,  without  an  averment  that  demand  has 
been  made,  is  not  suflBcient.  but  demand  must  be  averred.' 
Suit  may  also  be  brought  by  a  legatee,  widow  or  other  dis- 
tributee, after  the  amount  due  them  respectively  has  been 
ascertained  or  determined  by  the  court,  if  the  executor  or  ad- 
ministrator fails,  upon  demand,  to  pay  the  same.'  A  creditor 
may,  notwithstanding  the  fact  that  further  time  has  been  al- 
lowed by  an  administrator  for  the  settlement  of  the  estate, 
maintain  an  action  upon  the  bond  after  eighteen  months  from 
the  date  thereof ;  *  but  a  legatee  or  distributee  cannot  main- 
tain an  action  for  the  recovery  of  his  legacy  or  distributive 
share  until  after  the  expiration  of  the  four  years  allowed 
creditors  for  the  presentment  of  claims,  unless  allowed  so  to 
do  by  the  probate  court.^  But  where  the  probate  court  has 
ordered  an  executor  to  pay  a  legatee  the  amount  due  him,  no 
further  or  other  order  is  necessary  to  enable  such  legatee  to 
bring  suit.^  An  action  on  a  bond  of  an  adminstrator  or  exec- 
utor should  be  brought  in  the  court  of  common  pleas  or  su- 
perior court  of  the  county  in  which  it  was  given."  The  probate 
court  may  also  authorize  any  creditor,  next  of  kin,  legatee  or 
other  person  aggrieved  to  bring  suit  for  any  maladministration.' 
The  suit  under  this  section  may  be  brought  in  the  name  of  the 
state,  the  payee  of  the  bond  or  by  a  legatee.^  Where  an  executor 
or  administrator  has  died,  has  been  removed  or  has  resigned, 
an  action  may  be  maintained  on  his  bond  by  any  succeeding  ad- 
ministrator for  any  breach  therein,^"  as,  for  example,  the  recov- 
ery of  property  belonging  to  the  estate  for  which  he  has  failed 
to  account  :^^  but  such  succeeding  administrator  cannot  bring 
suit  against  the  personal  representatives  of  the  former  admin- 
istrator, being  confined  to  an  action  on  the  bond; ^^  nor  is  it 

1  Douglass  V.  Day,  28  O.  S.  175.  ^  Greer  v.  State,  2  O.  S.  575. 

-  Woodson  V.  State,  17  O.  161.    See  ^  Davrson  r.  Dawsou,  siq^ra. 

State  V.  Cowles,  5  O.  S.  87 ;  Case  v.  6  Gandolfo  v.  Walker,  15  O.  S.  251. 

State,  10  W.  L.  J.  163.  tr.  S.,  sec.  6215;  Dawson  v,  Daw- 

3R  S.,  sec.  6211 ;  Douglass  v.  Day,  son,  25  O.  S.  443. 

28  O.  S.  175:  Dawson  v.  Dawson,  25  8R,  a,  see.  6212. 

O.  S.  443 ;  State  v.  Cutting,  2  O.  S.  1.  9  Mighton  v.  Dawson.  88  O.  S.  650-5. 

For  failure  to  pay  legacy,  Gould  v.  lOR.  S.,  sec.  6214. 

Steyer,  75  InA  50 ;  Heady  v.  State,  "  Tracey  v.  Card.  2  O.  S.  432. 

60  Ind.  316,                          '  12  Curtis  v.  Lynch,  19  O.  S.  393. 


330  BONDS.  [§  355. 

necessary  that  an  administrator  de  bonis  non  be  specially 
authorized  to  bring  such  suit:^  nor  that  the  amount  due  the 
estate  from  the  deceased  administrator  be  first  ascertained 
by  the  finding  or  judgment  of  a  court.- 

An  averment  of  failure  of  an  administrator  or  executor  to 
pay  to  his  successor  an  amount  found  due  from  him  upon  set- 
tlement is  a  sufficient  assignment  of  a  breach  of  the  condition 
of  his  bond  "to  administer  according  to  law "  the  assets  of 
the  estate,  and  recovery  may  be  had  on  the  bond  of  the  former 
administrator  against  his  sureties.^  In  actions  by  an  admin- 
istrator de  honis  non  it  will  be  sufficient  to  aver  his  appoint- 
ment without  stating  that  he  has  given  bond.*  Where  the 
breaches  alleged  in  the  bond  are  failure  to  return  an  in- 
ventory and  wasting  and  converting  assets,  the  action  should 
be  for  the  benefit  of  the  estate  and  not  of  a  particular  legatee 
or  distributee;^  and  it  will  be  a  sufficient  averment  of  a 
breach  to  set  forth  the  conditions  of  the  bond  and  aver  their 
non-performance.*  A  petition  on  an  administrator's  bond 
claimino^  that  he  has  failed  to  account  for  a  certain  sum  of 
money  as  interest  by  him  collected,  and  wrongfully  withheld 
distribution  thereof,  though  demanded,  and  that  he  has 
wrongfully  delayed  settlement  of  the  estate,  is  good  as  to 
each  breach.^  Where  an  action  is  brought  for  maladmin- 
istration other  than  the  non-payment  of  an  amount  due  a 
creditor  from  an  estate,^  or  for  the  share  due  a  legatee,  widow 
or  other  distributee,^  it  should  be  brought  for  the  benefit  of 
all  parties  interested  in  the  estate,  and  not  for  the  benefit  of 
a  particular  legatee  or  distributee.'" 

Sec.  355.  Petition  against  administrator  for  maladrain* 

istration. — 

Plaintiff  brings  this  action  on  behalf  of  himself  and  all  others 
interested  in  the  estate  of  A.  B.,  deceased,  and  says  that  the 

1  Gutridge  v.  Vanatta,  27  O.  S.  366.     N.  Y.  565 ;  116  Mass.  552 ;  59  III  148 ; 

2  Douglass   V.  Day.  28  O.   S.   175 ;     23  Kan.  235. 

O'Connor  v.  State,  18  O.  225.  *  Gutridge  v.  Vanatta,  supra, 

*  Slagle  V.  Entrekin,  14  0.  S.  637 :  5  Dawson  v.  Dawson,  supra, 

R  S.,  sees.  6020,  6214 ;  Luce  v.  Treas-  ^  Gutridge  v.  Vanatta,  supra. 

urer,  W.  655 ;  Gutridge  v.  Vanatta,  ^  Stanton  v.  State,  82  Ind.  463. 

supra;  O'Connor  v.  State,  supra;  Fos-  ^  R  S..  sec.  6210. 

ter  V.  Wise,  46  O.  S.  20-25.    See  72  »  R  S..  sec.  6211. 

I'J  Dawson  v.  Dawson,  25  O.  S.  443. 


§  356.]  BONDS.  331 

defendant,  C.  D.,  was  appointed  administrator  of  the  estate  of 

the  said  A.  B..  deceased,  by  the  probate  court  of county, 

and  tliat  the  said  defendants  thereu))on  duly  executed  and 
filed  with  said  probate  court  an  administration  bond,  the  said 
A.  B.  as  principal,  and  the  said  E.  F.  and  (t.  H.  as  sureties 
thereon,  a  cop}"  of  which  bond  is  hereto  attached,  whereby 
they  became  bound  to  the  state  of  Ohio  in  the  penal  sum  of 

dollars,  and  thereupon  the  said  A.  B.  entered  upon  the 

duties  of  administrator  of  such  estate,  and  said  administration 
bond  contained  the  following  conditions,  to  wit:  [Here  insert 
the  crmditions  complained  of]. 

The  plaintiff  further  says  that  a  large  amount  of  property 
belonging  to  said  estate  came  into  the  hands  of  said  A.  B.  to 
be  administered  upon,  among  which  was  the  following, to  wit: 
[Here  describe  and  give  f nil  value  of  jyrojyertyl. 

This  plaintiff  says  that  said  A.  B.  has  not  made  any  inven- 
tory of  the  above-mentioned  property,  or  returned  the  same 
to  the  said  probate  court,  nor  administered  upon  the  same  or 
any  part  thereof,  but  has  taken  and  converted  the  same  to  his 
own  use. 

Plaintiff  says  that  there  are  no  debts  against  said  estate, 
and  that  the  period  has  long  since  elapsed  since  the  defendant, 
A.  B.,  should  have  paid  the  amount  due  this  plaintiff  and  those 
on  whose  behalf  he  sues  as  their  distributive  share  of  their 
estate,  and  that  demand  has  been  duly  made  upon  said  A.  B. 
for  the  same,  but  that  he  has  refused  to  pay  the  same,  and 
pretends  that  there  are  no  more  assets  of  said  estate,  which 
plaintiff  says  is  untrue,  by  reason  whereof  said  bond  has  be- 
come forfeited,  and  said  plaintiff  is  entitled  in  law  to  have  an 
action  thereon  against  the  makers  thereof,  and  that  by  the 

order  of  the  probate  court  made  on  the day  of ,  18 — , 

plaintiff  was  authorized  by  said  court  to  bring  a  suit  upon  said 
bond  as  provided  by  law. 

Wherefore  the  plaintiff  prays  judgment  against  the  defend- 
ants for  the  sum  of dollars. 

Note.— Authorized  under  R.  S.,  sec.  6212. 

Sec.  356.  Petition  by  heir  on  administrator's  bond. — 

Plaintiff  says  on  the day  of ,  18 — ,  the  defendant 

A.  P.  was  by  the  probate  court  of  said  county  of ,  Ohio, 

•duly  appointed  administrator  of  the  estate  of  A.  E,.  C,  de- 
ceased, late  of  said  county,  intestate. 

That  said  A.  P.  accepted  said  trust,  and  duly  qualified  as 
such  administrator,  and  entered  upon  the  discharge  of  the 
■duties  of  said  trust;  that  upon  such  appointment  said  A.  P., 
with  the  defendant  J.  F.  and  one  N.  C.  (who  has  since  died) 
as  his  sureties,  executed  in  the  form  prescribed  by  law  a  joint 
.and  several  administration  bond,  and  delivered  Ihe  same  to 
the  judge  of  the  probate  court  of  said  county  (^a  copy  of  which. 


332  BONDS.  [§  357. 

bond,  duly  certified,  is  hereto  attached,  marked  "  Exhibit  A  "), 
whereby  they  became  jointly  and  severally  bound   unto  the 

state  of  Ohio,  in  the  sum  of dollars,  subject,  among  other 

conditions  prescribed  by  law,  to  the  following  conditions,  to 
wit :  *  that  if  the  said  A.  P.  shall  pay  any  balance  remaining  in 
his  hands  upon  the  setteraent  of  the  accounts  to  such  persons 
as  said  court  or  the  law  shall  direct,  then  said  bond  to  be  void, 
otherwise  to  be  and  remain  in  full  force  and  virtue. 

That  on  the  day  of  ,  18 — ,  said  administrator's 

accounts  were  settled  in  said  probate  court,  and  the  sum  of 

dollars  was  found  by  the  consideration  of  said  court  to 

be  in  his  hands  for  distribution,  which  said  sum  said  probate 
court  ordered  said  administrator  to  distribute  according  to 
law. 

That  the  said  A.  E.  C.  died,  leaving  nine  children,  who,  as 
heirs  at  law,  are  entitled  to  said  sum  remaining  in  the  hands 
of  the  said  administrator  for  distribution;  that  plaintiff,  as 
such  child  and  heir  at  law,  is  entitled  to  one-ninth  part  of  said 
sum,  to  wit,  the  sum  of dollars. 

Plaintiff  further  saith  that  at  various  times  since  the  ap- 
proval of  said  account  by  said  probate  court  he  has  demanded 
the  payment  of  his  distributive  share  of  said  estate  from  said 

administrator,  to  wit,  the  said  sum   of dollars,  but  that 

said  administrator  has  not  paid  said  sura,  or  any  part  thereof; 
that  by  reason  of  the  premises  there  is  due  plaintiff  from  said 

defendants  the  sum  of dollars,  with  interest  from 

,  18 — ;  wherefore  he  prays  judgment  against  said  defend- 
ants for  the  said  sum  of dollars,  with  interest  from . 

Note. —  From  Fisher  v.  Cassidy,  49  O.  S.  421.  Suits  may  be  brought  by 
heir  or  legatee.  R.  S.,  sec.  6211.  See  ante.  sec.  354.  The  death  of  one  of 
two  sureties  before  any  liabiHty  is  incurred  does  not  release  his  estate. 
Johnson  v.  Harvey.  84  N.  Y.  363.  364.  Liability  of  surety  does  not  depend 
on  whether  or  not  his  name  appears  in  body  of  bond.  Partridge  v.  Jones, 
88  O.  S.  375;  McLain  v.  Simington,  37  O.  S.  484.  Additional  liond  relates 
back  to  beginning  of  trust.     Thome  v.  Maguire,  3  Am.  L.  Rec.  140. 

Sec.  357.  Petition  hy  creditor  on  administrator's  bond. — 

[  CaptionP\ 

\Forriial  averments  as  in  ante^  see.  356,  with  the  substance  of 
the  special  condition  hroken.'] 

Plaintiff  further  says  that  he  is  a  creditor  of  the  estate  of 
the  said  A.  B.  in  the  sum  of  dollars  with  interest  from 


A  duly  authenticated  written  statement  of  his  said  claim 
was  presented  to  the  said  defendant,  C.  D.,  administrator 
aforesaid,  which  was  duly  allowed  by  said  administrator  as  a 
valid  claim  against  said  estate ;  that  the  period  of  eighteen 
months  allowed  the  said  defendant  for  the  settlement  of  said 
estate  and  since  the  date  of  said  administration  bond  has 
expired.      That  said  administrator   has  assets  belonging  tu 


I 


f  358.]  BONDS.  333 

said  estate  in  his  hands  applicable  to  the  payment  of  plaint- 
ifip's  claim,  and  that  said  estate  is  clearly  so',  .ent.  That  after 
assets  belonging  to  said  estate  had  come  into  the  hands  of  said 
administrator,  and  since  the  expiration  of  said  eighteen  months, 

to  wit,  on  the day  of ,  18 — ,  plaintiff  duly  demanded 

payment  of  his  said  claim,  which  said  defendant  has  neglected 
and  refused  to  pay. 

Wherefore  plaintiff  asks  judgment  against  the  said  defend- 
ant in  the  sum  of dollars  with  interest  from . 

Note. —  R.  S.,  sec.  6210;  ante,  sec.  354.  As  to  recovery  by  creditor,  see 
State  V.  Brown,  80  lad.  425. 

Sec.  358.  Petition  by  succeeding  administrator  on  bond 
of  former  administrator. — 

\  Caption.'] 

Plaintiff  says  that  on  the day  of ,  13 — ,*  the  said 

defendant,  A.^  B.,  was  by  the  probate  court  of  county, 

Ohio,  removed  as  administrator  [or,  executor]  of  the  estate  of 
C.  D.,  deceased,  and  his  letters  of  administration  revoked. 

[(!?/■,*  the  said  A.  B.  tendered  his  resignation  as  administra- 
tor of  the  estate  of  the  said  C.  D.,  deceased,  which  was  duh'  ac- 
cepted by  the  probate  court  of county,  Ohio.] 

That  on  the day  of ,  18 — ,  plaintiff  was  by  the  said 

probate  court  of county,  Ohio,  duly  appointed  adminis- 
trator de  bonis  non  of  the  estate  of  the  said  C.  D.,  deceased, 
and  is  now  the  dulv  acting  and  qualified  administrator  of  such 
estate. 

That  said  defendant,  A.  B.,  as  such  administrator  as  afore- 
said, and  said  defendants,  E.  F.  and  G.  H.,  as  sureties,  duly  ex- 
ecuted an  administration  bond  (a  copy  of  which  is  hereto  at- 
tached), whereby  they  became  bound  unto  the  state  of  Ohio 

in  the  sum  of  " dollars,  upon  the  Conditions  following: 

\_State  conditions.'] 

That  on  the day  of ,  18 — ,  said  A.  B.  filed  his  final 

account  with  the  probate  court  of  county,  Ohio,  which 

said  account  was  duly  approved,  confirmed  and  allowed  by  said 
court,  said  account  showing  a  balance  in  the  hands  of  the  said 
A.  B.  as  such  administrator  due  the  estate  of  the  said  C.  D., 
deceased,  of  the  sum  of  $ •. 

\^0r^  Said  A.  B.  received  and  collected  assets  belonging  to 

said  estate,  amounting  to  $ ,  for  which  he  has  wholly  failed, 

refused  and  neglected  to  file  an  account  with  the  probate 
court  as  by  law  required,  and  has  failed  and  neglected  to  ad- 
minister, the  assets  of  said  estate,  according  to  law,  but  has 
wrongfuly  and  wilfully  appropriated  and  converted  the  same 
to  his  own  use.  Said  defendant,  A.  B,,  has  failed  to  account 
for  and  settle  with  this  plaintiff  as  his  successor.] 

That  on  the day  of ,  18 — ,  this  plaintiff  duly  de- 
manded payment  of  said  sum  from  the  said  defendant,  A.  B,, 


334  BONDS.  [g  359. 

with  which  demand  he  failed  and  wholly  refused  and  still  re- 
fuses to  comply.     There  is  therefore  due  said  plaintiff  as  such 

administrator,  from  the  said  defendants,  said  sum  of  $ , 

for  which  he  asks  judgment. 

Note. —  Succeeding  administrator  maj^  sue  on  bond  of  former  adminis- 
trator or  executor  for  any  breach  thereof.     R  S.,  sec.  6314. 

Sec.  359.  Actions  on  appeal  bonds. —  The  penalty  of  an  ap- 
peal bond  is  double  the  amount  of  a  judgment  for  the  payment 
of  money  only,  and  in  all  other  cases  the  amount  is  to  be  fixed 
at  such  reasonable  sum  as  will,  in  the  opinion  of  the  court,  sufii- 
ciently  cover  the  probable  loss,  damage  or  injury  which  the 
opposing  party  may  sustain.^  The  bond  is  made  payable  to 
the  adverse  party  or  "otherwise,  as  may  be  directed  by  the 
court,  and  subject  to  a  condition  that  the  party  shall  abide  by 
the  decision  of  the  appellate  court  and  pay  all  costs  and  dam- 
ages if  the  same  be  against  him.^  It  should  be  averred  in  an 
action  on  an  appeal  bond  that  there  was  a  suit  in  which  a 
judgment  was  appealed  from.^  It  is  not  sufficient  to  allege  a 
judgment  on  an  appeal  between  parties  of  the  same  name  as 
those  in  the  bond,  but  it  must  be  shown  that  the  action  is  the 
one  from  which  the  appeal  is  taken,  as  it  will  not  be  presumed 
that  there  were  any  other  actions  between  the  same  parties  in 
the  same  court.*  An  action  cannot  be  maintained  on  an  ap- 
peal bond  when  it  is  ascertained  by  the  return  of  an  execution 
that  a  debtor  has  not  sufficient  property  to  pay  the  original 
judgment,  and  the  petition  should  show  that  the  same  is  not 
paid.^  But  an  actioit  cannot  be  sustained  on  a  bond  for  an 
appeal  from  a  judgment  rendered  by  a  justice,  where  neither 
the  appellant  or  appellee  file  a  transcript  within  the  required 
time.*^  A  surety  cannot  urge  as  a  defense  to  an  action  on  an 
appeal  bond  that  he  informed  the  officer  that  the  principal 
debtor  had  property,  but  it  must  appear  that  there  was  prop- 
erty, and  that  the  plaintiff  and  surety  were  so  informed."  If 
there  is  any  question  as  to  whether  or  not  the  amount  ex- 
pressed in  an  appeal  bond  be  double  the  amount  of  the  judg- 
ment, the  pleading  should  disclose  the  amount  of  the  judgment 

1 R  S.,  sec.  5230.  *  North  v.   Merchant,  1  W.  L.  M. 

^R  S.,  sec.  5231.  284. 

3  Marks  v.  Harris,  10  Am.  Law  Rec.         ^  Mayo  v.  Williams,  17  O.  244. 
481.  *  Gimperling  v.  Hanes,  40  O.  S.  114» 

'  Stanley  \.  Lucas,  W.  34. 


§§  360,  361.]  BONDS.  336 

and  also  of  i-he  boncl.^    The  date  of  the  judgment  appealed 
from  should  be  alleged,  the  term  of  the  court  not  being  suffi- 
ciently definite  to  be  relied  upon.^ 
Sec.  360.  Petition  on  appeal  bond. — 

On  the day  of .  18 — ,  the  plaintiff,  by  the  consid- 
eration of  the  court  of  common  pleas  of county,  Ohio,  in 

a  case  therein  pending,  wherein  A.  B.  was  plaintiff  and  0.  D., 
defendant  herein,  was  defendant,  said  cause  being  numbered 

,  recovered  a  decree  against  the  said  CD.,  defendant,  for 

[state  nature  of  decree]  and  costs,  from  which  said  judgment 
and  decree  said  defendant.  C.  D.,  took  an  appeal  to  the  circuit 

court  of county,  Ohio.     That  on   the day"  of , 

18 — ,  he  perfected  his  said  appeal  by  filing  with  the  clerk  of 
said  court  of  common  pleas  his  appeal  bond   in  the  sura   of 

% ,  with  the  defendants  E.  F.  and  G.  H.  as  sureties  tliereon, 

which  said  bond  was  duly  approved,  a  copy  of  which  is  hereto 
attached,  marked  "Exhibit  A."'  The  conditions  of  said  bond 
were  such  that  \_state  conditions  either  in  suhstance  or  hy 
copylJ'     That  such  proceedings  were  had  in  said  circuit  court 

in  said  cause  that  on  the day  of .  18 — ,  the  plaintiff 

recovered  a  judgment  and  decree  against  the  said 

for  {state  what\  and  for  costs,  taxed  at  $ .     That   said 

judgment  and  decree  remains  unreversed  and  unsatisfied,  and 
said  C.  I>.  has  not  complied  with  the  same  by  [state  lohat  was 
required  of  him'],  and  the  conditions  of  said  bond  are  thereby 
broken, 

[Prayer.]    ■ 

Note.—  Appeal  to  circuit  court.  R.  S.,  sec.  5227.  When  appeal  may  be 
taken.  R.  S.,  sec.  5226 :  Wliittakers  Code,  pp.  184-6.  Parties  in  trust  capacity 
need  not  give  bond.  R.  S.,  sec.  5228.  See  R.  S.,  sees.  5229-39.  A  bank  check 
cannot  be  given  in  lieu  of  appeal  bond.  Allen  v.  Turnpike  Co.,  12  W.  L.  B. 
168.  Surety  need  not  be  resident  of  county.  Bushong  v.  Graham,  4  O.  C.  C. 
140.  Assignee  need  not  give  an  apjjeal  bond  (Kennedy  v.  Thompson,  3 
O.  C.  C.  446),  but  must  as  to  his  personal  claim.  Biddle  v.  Phipps,  2  O.  C.  C. 
61. 

Sec.  361,  Petition  on  appeal  bond  where  one  of  sureties 
is  deceased. — 

[Caption.] 

[Formal  part  as  in  ante.,  sec.  360^  to  *.] 

And  the  said  plaintiffs  say  that  afterw^ard  such  proceedings 

were  had  on  said  appeal  in  said court  that  at  its 

term,  18 — ,  the  said  B.  H.  recovered  a  judgment  against  the 

said  M.  M.  for  the  sum  of  S and  costs  taxed  in  said  action ; 

and  the  said  plaintiff  further  states  that  afterward,  to  wit,  on 

the day  of ,  18,  he  caused  an   execution  to  be  issued 

on  said  judgment,  directed  to  the  sheriff  of  said  county,  for 
the  collection  of  said  sum  of  money,  and  that  on  the day 

1  Bank  v.  Bartlett,  W.  741.  2  Reddish  v.  Harrison,  W.  221. 


336  BONDS.  [§§  362,  363. 

of ,  18 — ,  said  sheriff  returned  said  execution  indorsed  "No 

goods  or  chattels,  lands  or  tenements  of  said  M.  M.  found  in 
my  county  whereon  to  lev\'  to  satisfy  this  execution  or  any 
part  thereof.'- 

The  plaintiffs  say  that  the  said  S.  W.  M.  is  dead,  and  that 
M.  E.  M.  is  his  duly  appointed,  qualified  and  acting  executrix. 
Plaintiffs  sa}^  that  they  presented  the  claim  set  out  in  this 
petition  to  the  said  M.  E.  M.  as  a  claim  against  the  estate  of 

S.  W.  M.,  and  that  she,  on  the day  of ,  18 — ,  rejected 

the  same.  Plaintiffs  say  that  neither  of  said  defendants  has 
paid  said  sum  of  money  so  awarded  against  the  said  M.  M.,  or 
any  part  thereof,  and  the  same  is  now  due  and  unpaid,  whereby 
an  action  has  accrued  to  the  plaintiff  to  have  and  demand  the 

said  sum  of  $ with  interest  thereon  from  the day  of 

,  18 — ,  from  the  said  defendants. 

The  plaintiffs  therefore,  by  reason  of  the  premises  herein- 
before set  forth,  pray  judgment  against  the  said  defendants 

for  said  sum  of  $ .  with  interest  thereon  from  the day 

of ,  18—. 

Note. —  From  Moore  v.  Helbush,  Supreme  Court,  unreported,  No.  1538. 

Sec.  362.  Petition  on  appeal  bond  from  justice. — 

[Caption.] 

That  on  the day  of ,  IS — ,  the  plaintiff  recovered 

a  judgment  before  J.  P.,  a  justice  of  the  peace  in  and  for  the 

township  of  ,  of  the  county  of ,  and  state  of  Ohio, 

against  the  defendant  C.  D.  for  $ and  costs,  from  which 

judgment  the  said  C.  D.  duly  appealed  to  the  common 

pleas  court  of  said  state,  and  executed  his  appeal  bond  in  the 

sum  of  $ with  the  defendants  E.  F.  and  G.  H.  as  sureties, 

a  copy  of  which  bond  is  hereto  attached,  marked  "  Exhibit  A," 
which  bond  was  duly  approved  by  said  justice  by  indorse- 
ment thereon,  and  was  conditioned  that  said  C.  D.  would 
prosecute  his  appeal  without  unnecessary  delay,  and,  if  judg- 
ment were  rendered  against  him  on  appeal,  would  satisfy  the 
same  together  with  the  costs. 

That  such  proceedings  were   had  in  said   common   pleas 

court  in  said  cause,  that  on  the  day  of ,  18 — ,  the 

plaintiff  recovered  a  judgment  against  said  0.  D.  for  $ 

and  costs. 

That  said  judgment,  interest  and  costs  thereon  has  not  been 
paid  and  the  same  remains  unsatisfied. 

[Prayer.'] 

Note. —  R  S.,  sec.  6584.  Failure  to  prosecute  appeal  successfully  is  a 
breach  of  bond    Murphy  v.  Steele,  51  InA  81. 

Sec.  363.  Actions  on  attachment  bonds. —  "Where  an  at- 
tachment has  been  maliciously  or  even  wrongfully  sued  out 
au  action  may  be  maintained  upon  the  undertaking  for  the 


§  363.]  BONDS.  337 

recovery  of  such  damages  as  may  be  sustained  by  reason 
thereof,  and  it  is  not  necessary  that  the  same  be  liquidated  in 
another  action  against  the  principal.^  Such  an  action  may  be 
prosecuted  by  those  obligees  who  have  an  interest  in  the 
damages,  without  making  others  having  no  interest  therein, 
by  reason  of  having  been  discharged,  parties  thereto;  and  it 
is  not  necessary  to  aver  that  the  attachment  has  been  dis- 
charged as  to  those  obligors  who  are  not  necessary  parties.^ 
Nor  need  it  be  alleged  that  an  affidavit  was  filed,  or  that  a 
writ  was  delivered  to  the  proper  officer,  or  that  the  goods 
were  sold  by  any  person  having  authority;  ^  nor  the  grounds 
on  which  the  writ  was  issued;*  nor  a  return  of  the  same;' 
nor  want  of  probable  cause  or  malice.®  Under  a  statute  re- 
quiring an  attachment  bond  to  be  signed  by  the  plaintiff,  the 
same  is  annulled  if  signed  only  by  a  stranger,  and  an  action 
cannot  be  maintained  thereon;  nor  can  it  be  contended  in 
such  an  action  that  the  bond  is  valid  at  common  law  unless 
an  allegation  be  made  in  the  })etition  to  that  effect.'' 

The  relation  existing  between  sureties  on  an  attachment 
bond  and  those  on  an  error  bond  in  the  same  action  is  that 
of  principal  and  surety  respectively ;  and  hence  the  sureties 
on  the  attachment  bond,  being  the  principals  who  have  paid 
the  damages,  cannot  compel  contribution  by  the  sureties  on 
the  error  bond.^  The  payees  and  subsequent  attaching  credit- 
ors may  join  as  plaintiffs  in  an  action  on  an  attachment  un- 
dertaking although  the  latter  are  not  named  as  payees  therein.' 
The  fact  that  a  defendant  has  given  a  redelivery  bond  cannot 
be  set  up  as  a  bar  to  an  action  on  the  attachment  undertaking.^" 
If  the  petition  be  defective  by  reason  of  not  alleging  that  the 
attachment  was  wrongfully  issued,  it  may  be  cured  by  the  de- 

1  Bruce  v.  Coleman,  1  Handy,  515 ;        *  Berry  v.  Hart.  1  Colo.  246. 
Tallant  v.  Burlington  Co.,  36  Iowa,        » Berry  v.  Hart,  supra. 

262 ;  Seay  v.  Greenwood,  21  Ala.  491.  «  Bruce  v.  Coleman,  1  Handy.  515. 

The  action  must  be  brought  in  the  "  Booker  v.  Smith,  16  S.  E.    Rep. 

court  in  which  it  was  given.   King  v.  774  (N.  C,  1893). 

Henry,  2  Disn.  73.  s  Bradford  v.  Mooney,  2  C.  S.  C.  R. 

2  Alexander  v.  Jacoby,  23  O.  S.  468  (1872) ;  Hartwell  v.  Smith.  15  O. 
858.      See   Boyd  v.  Martin,   10  Ala.  S.  200. 

700 ;  Gayle  v.   Martin,   3  Ala.    593  ;        » Rutledge  v.  Corbin,  10  O.  S.  478.     - 
Hill  V.  Wood.  4  Ala.  214.  i»  Alexander  v.  Jacoby,  23  O.  S.  358. 

3Trentman  v.  Wiley,  85  Ind.  33. 
22 


338  BONDS.  [§  364 

fendant  answering.^  It  has  been  held  that  a  petition  alleging 
that  the  principals  made,  executed  and  filed  a  bond,  a  copy 
of  which  is  set  forth  showing  the  signatures  attached,  is  not  a 
sufficient  allegation  as  to  the  execution  by  the  sureties,  where 
the  answer  merely  admits  the  fact  stated  to  be  true.'' 

Sec.  364.  Petition  on  attachment  bond  — For  the  writ.— 

Plaintiff  says  that  the  defendant  A.  B.  commenced  in  the- 


court  of attachment  jiroceedings  against  this  plaintiff  for 

the  recovery  of  money,  alleging  as  a  ground  for  said  proceed- 
ings, as  disclosed  in  hfs  affidavit,  the  following:  [Here  state  the 
ground  of  attachment.'] 

That  at  the  time  of  instituting  said  proceedings  and  in  order 
to  procure  said  writ  of  attachment,  the  said  defendants  duly 
executed  and  filed  in   the  office  of  the  clerk  of  said  — — 

county,  Ohio,  their  certain  bond,  in  the  sum  of  $ ,  with 

the  defendants  C.  D.  and  E.  F.  as  sureties,  a  coi)y  of  which  is 
hereto  attached,  marked  ''  Exhibit  A,*'  the  conditions  of  which 
bond  are  in  substance  that  [here  state  the  suhstance  or  copy 
of  conditions'],  which  said  bond  was  duly  approved  by  said 
clerk;  that  thereupon  a  writ  of  attachment  was  issued  out  of 
said  court  which  was  levied  upon  the  following  goods  and 
chattels  of  plaintiff  which  were  taken  -into  custody  of  the 
sheriff  of  said  county,  and  by  him  retained  for  the  space  of 
days,  to  wit :  \_IIere  describe  the  goods.] 

Plaintiff  further  says  that  the  said  writ  of  attachment  was 
wrongfully  sued  out,  and  that  there  was  no  just  cause  for  is- 
suing the  same,  and  the  statement  in  said  affidavit  was  false; 
that°this  plaintiff  was  not  about  to  convert  his  property  and 
credits  or  any  part  thereof  into  money  for  the  purpose  of 
placing  the  same  beyond  the  reach  of  his  creditors;  and  that 

on  the day  of ,  18 — ,  upon  a  motion  duly  made  in  said 

court,  said  attachment  was  discharged  and  the  proceedings  dis- 
missed at  the  cost  of  the  said  defendants. 

Plaintiff  has  sustained  damages  by  reason  of  the  said  wrong- 
ful suing  out  of  said  writ  of  attachment,  to  wit:  \_IIere  state 
the  special  ground  of  damages.] 

Wherefore  plaintiff  asks  judgment  against  the  defendants 
in  the  sum  of dollars  with  interest. 

Note.—  When  undertaking  required.  R.  S.,  sec.  5523.  See  ch.  18,  sec.  252. 
Abandonment  of  attachment  proceedings,  merely,  will  not  give  rise  to  an 
action  on  the  bond.  Smith  v.  Story,  4  Humph.  169 ;  Petitt  v.  Mercer,  8  B. 
Mon.  51.  But  see  Cox  v.  Robinson,"2  Rob.  (La.)  313.  If  the  proceedings  are 
wrongful  and  oppressive,  even  though  there  be  a  good  cause  for  tlie  main 
actiou,  the  defendant  mav  have  a  cause  of  action  on  the  bond.  Harper  v. 
Keys,  43  Ind.  220. 

1  Drake  v.  Sworts.  33  Pac.  Rep.  563  -'  Seattle  Crockery  Co.  v.  Haley,  33 
(Oreg.,  1893).  Pac.  Rep.  650  (Wash.,  1893). 


^§  365,  366.]  EONDS.  339 

Sec.  365.  Petition  on  redelivery  bond  —  Attachment. — 

\_Caption.'] 

That  on  the day  of .  18 — .  he  commenced  an  ac- 
tion in  the court  of count3%  Ohio,  against  said  C.  D. 

for  the  recovery  of  money,  and  filed  in  said  cause  his  affidavit 
and  undertaking  with  the  clerk  of  said  court,  and  procured  an 
order  of  attachment  which  was  duly  levied  on  the  property 
belonging  to  the  said  C.  D.,  to  wit:  [State  the  property.'] 

On  the day  of ,  18 — ,  said  C.  D.  applied  for  a  de- 
livery of  said  property  to  him,  and,  together  with  said  V.  as 
his  surety,  executed  his  bond  to  this  plaintiff,  conditioned  that 
said  property  should  be  |)roperly  kept  and  taken  care  of  and 
delivered  to  said  sheriff'  on  demand,  or  so  much  thereof  as 
might  be  required,  to  be  sold  on  execution  to  satisfy  any 
judgment  which  might  be  recovered  against  him  in  the  action, 
or  that  he  would  pay  the  appraised  value  thereof,  not  exceed- 
ing the  amount  of  judgment  and  costs,  a  copy  of  which  bond 
is  hereto  attached,  marked  ''Exhibit  A." 

Said  property  was,  on  the day  of ,  IS — ,  duly  ap- 

jiraised  at dollars. 

Said  written  undertaking  was  delivered  to  the  sheriff  of 
said  county  and  approved  by  him,  and  said  property  delivered 
to  said  C.  D. 

That  such  proceedings  were  thereafter  had  in  said  cause 

that  this  plaintiff  recovered  a  judgment  for dollars,  and 

his  costs  taxed  at dollars,  and  a  judgment  in  the  attach- 
ment proceedings  for  the  sale  of  said  property,  and  an  order 
of  sale  and  execution  was  duly  issued  thereon." 

That  the  sheriff  of  said  county,  after  receiving  said  order  of 
sale  and  execution,  demanded  the  delivery  of  said  property  to 
him  [or,  enough  of  said  property  to  satisfy  said  judgment,  if 
there  is  more  than  enough  for  that  purpose'],  but  said  0.  D.  re- 
fused to  deliver  the  same,  or  any  part  of  it. 

That  thereupon  said  sheriff  demanded  the  payment  by  said 
C.  D.  of  the  appraised  value  thereof  [or,  fthe  appraised  value 
exceeds  the  amount  of  the  judyrnenU  said  sheriff  demanded  the 
payment  of  said  judgment  and  costs],  which  was  refused. 

That  no  part  of  said  judgment  and  costs  has  been  paid. 

Wherefore  the  plaintiff  asks  judgment  for dollars  and 

all  other  proper  relief. 

[Copy  of  undertaking^ 

Note.—  R  S.,  sec.  5529.    See  ante,  sec.  255. 

Sec.  366.  Petition  on  buildinitj-eontract  bond. — 

On  the day  of ,  lb—,  the  plaintiff  and  the  defend- 
ant C.  D.  entered  into  a  contract  for  the  construction  of  a 
[name  luilding]  on  the  plaintiff's  land,  defendant  to  furnish  all 
the   material  therefor  at   his   own    expense,  for  which   the 


340  BONDS.  [§  367. 

plaintiff  agreed  to  pay  said  C.  D. dollars.     [Give  as  much 

ofhuilding  contract  as  seems  necessary.'] 

That  at  the  same  time,  and  as  part  of  said  contract,  said 
C.  D.  with  his  co-defendants  executed  to  the  plaintiff  a  bond 
(a  copy  of  which   is  hereto  attached  marked  "Exhibit  A"), 

binding  themselves  in  the  sum  of  dollars,  which  said 

bond  was  conditioned  that  \state  conditions]. 

That  the  plaintiff  paid  said  C.  D.  the  sum  of dollars  at 

the  time  said  contract  was  made,  and  the  further  sum  of 

dollars  on  the  day  of  ,  IS — ,  when  said  was 

completed. 

That  said  C.   D.   constructed  said in  accordance  with 

said  contract,  and  procured  the  material,  but  did  not  pay  for 
the  same,  and  the  persons  from  whom  said  material  was  pur- 
chased demanded  payment  from  plaintiff,  which  he  refused, 
and  they  filed  mechanics'  liens  therefor  in  the  recorder's  office 

of  the  county  wherein  said  was  situated  against   said 

building,  and  the  plaintiff  was  compelled  to  pay  the  same, 
amounting  to  — — dollars;  whereby  plaintiff  has  been  dam- 
aged in  the  sum  of dollars,  for  which  he  demands  judg- 
ment. 

ACTIONS    ON   COUNTY    OFFICIAL   BONDS,  ETC. 

Sec.  367.  Petition  by  the  state  through  tlie  prosecuting 
attorney  against  county  officer  and  his  bondsmen,  to  re- 
cover money  illegally  received. — 

The  plaintiff',  hx ,  prosecuting  attorney  in  and  for 

county,  Ohio,  for  a  first  cause  of  action  against  said  de- 
fendant says : 

1.  That  on  the  day  of ,  18 — ,  the  said  J,  M.  K., 

"W.  K.  and  O.  H.,  at  the  county  of  aforesaid,  by  their 

certain  writing  obligatory  of  that  date,  acknowledged  them- 
selves to  be  held  and  firmly  bound  unto  the  state  of  Ohio 

in  the  penal  sum  of dollars,  which  said  writing  obligatory 

was  and  is  subject  to  a  condition  thereunder  written,  and  which 
condition  is  in  the  words  and  figures  following,  to  wit:  {_Give 
condition  as  appears  in  bond.] 

2.  That  the  said  J.  M.  K.  diid  thereupon  take  upon  himself 
the  duties  of  the  said  office  of  county  treasurer  of  said  county 

of ,  and  was  such  treasurer  at  the  times  of  committing 

the  wrongs  hereinafter  stated, 

3.  That  on  the day  of ,  18 — ,  said  J.  M.  K.,  as 

such  treasurer,  did  present  to  the  county  commissioners  of 
said  county  the  following  account  for  services  as  such  county 
treasurer,  to  wit:  [Statement  of  services  rendered  for  which 
compensation  was  iUegally  received.] 

4.  That  on  the  — "—  day  of  ,  18 — ,  said  J.  M.  Iv.,  as 

such  treasurer  as  aforesaid,  unlawfull}'  received  out  of  the 


§  368.]  BONDS.  341 

county  funds  in  the  treasury  of  said  county,  as  compensation 

for  services,  as  stated  in  liis  said  account,  the  said  sum  of  $ , 

on  account  of  which  the  plaintiff,  by ,  prosecuting 

attorney,  says  that  the  said  J.  M.  K.,  together  with  said  other 
defendants,  have  become  and  now  are  indebted  unto  the  state 

of  Ohio,  for  the  use  of  said  county  of ,  upon  the  official 

bond  of  said  J.  M.  K.,  a  certified  copy  of  which  is  hereto  at- 
tached, marked  Exhibit  "  A,"  in  the  sum  of dollars. 

Note.—  From  State  v.  Kelley,  3:2  O.  S.  421. 

Sec.  368.  Petition  on  bond  of  clerk  of  courts. — 

Plaintiff  says  that  on  the day  of ,  IS — ,  the  de- 
fendant C.  D.,  at  a  general  election,  was  elected  clerk  of  the 

court  of  common  pleas  in  and  for  the  county  of , 

state  of  Ohio. 

That  on  the day  of ,  IS — ,  he,  with  his  co-defend- 
ants as  his  sureties,  executed  to  the  state  of  Ohio  his  bond 
(a  cop3^  of  which  is  hereto  attached,  marked  "  Exhibit  A  "), 
in  the  penal  sum  of dollars,  to  secure  the  faithful  per- 
formance of  his  duties  as  such  clerk,  which  bond  the  board  of 
county  commissioners  of  said  county  duly  approved.* 

yFor  failure  to  issue  summons  and  attacJiment:']  That  there- 
after and  on  the day  of ,  18 — ,  during  the  term  of 

office  of  said  C.  D.,  the  plaintiff  filed  in  his  office  a  petition  in 
said  court  against  one  L.  O.,  for  the  recovery  of  the  sum  of 
dollars,  which  was  then  due  from  said  L.  O.  to  the  plaint- 
iff, and  filed  his  affidavit  and  undertaking,  which  said  C.  D. 
duly  approved,  for  an  attachment  against  said  L.  O.,  and  re- 
quested said  C.  D.  to  issue  a  summons  and  order  of  attach- 
ment [and  tendered  him  his  fees  therefor]. 

That  said  C.  D.  wholly  neglected  and  refused  to  issue  said 
summons  and  order  of  attachment. 

That  at  the  time  said  petition,  affidavit  and  undertaking 
were  so  filed,  the  said  L.  O.  had  personal  and  real  property 
of  the  value  of dollars  in  said  county  subject  to  attach- 
ment and  execution,  and  which  might  and  could  have  been 
seized  under  an  order  of  attachment  had  the  same  been  issued. 

That  by  reason  of  the  failure  and  refusal  of  said  C.  D.  to 
issue  said  summons  and  writ  of  attachment,  said  L.  O.  was 
given  an  opportunity  to  and  did  sell  and  convey  said  real  es- 
tate for  a  valuable  consideration,  and  to  remove  from  the 
state  of  Ohio  taking  said  personal  property  and  the  proceeds 
of  the  sale  of  said  real  estate  with  him  and  disposing  of  the 
same  (and  the  said  L.  O.  has  since  become  and  is  now  totally 
insolvent),  whereby  the  plaintiff  has  lost  his  entire  debt. 

\_Oi\fo7'  a  failure  to  issue  execution.'] 

{^Commencement.,  as  at  *.]     That  on  the day  of , 

18 — ,  the  plaintiff  recovered  a  judgment  in  said  court  against 


342  BONDS.  [§  369. 

I^,  0.  for dollars  and dollars  costs,  which  remains  in 

full  force  and  unsatisfied. 

That  on  the day  of ,  18—,  during  the  term  of  office 

of  said  C.  D..  said  L.  0.  was  the  owner  of  personal  property, 

then  in  said county,  subject  to  execution,  of  the  value  of 

dollars,  and  on  said  day  the  plaintiff  requested  said  C.  D. 

to  issue  an  execution  on  said  judgment  to  the  sheriff  of  said 
county,  and  filed  in  his  office  a  written  precipe  directing  him 
to  issue  the  same  [and  tendered  him  his  fee  therefor  ,  but  he 
whoUv  failed  and  refused  to  issue  said  execution. 

That  bv  reason  of  said  C.  D.'s  failure  and  refusal  to  issue 
said  execution  as  directed,  the  said  L.  O.  was  enabled  to,  and 
did,  dispose  of  said  property,  and  he  became  wholly  insolvent 
[or,  one  O.  K.  afterward  recovered  a  judgment  in  said  court 
against  said  L.  O.,  caused  an  execution  to  issue  thereon,  levied 
upon  and  sold  said  personal  property  to  satisfy  his  said  judg- 
ment, and  said  L.  O.  became  and  still  is  wholly  insolvent]. 

[Or,  for  failure  to  2)(iy  over  money  collected j\ 

\_Cornmencement,  as  at  *.]     That  on  the day  of , 

IS—,  the  plaintiff  recovered  a  judgment  in  said  court  of  com- 
mon pleas  of county,  Ohio,  agamst  L.  O.  for dollars. 

That  on  the day  of ,  IS—,  said  C.  D.,  during  his 

term  of  office,  and  as  such  clerk,  collected  and  recovered  from 
said  L.  O.  — —  dollars  on  said  judgment. 

That  on  the day  of ,  IS—,  the  plaintiff  demanded 

of  said  C.  D.  payment  of  said  sum,  less  his  costs  and  charges, 
but  he  failed  and  refused,  and  still  fails  and  refuses,  to  pay 
the  same  or  any  part  thereof,  and  has  converted  the  same  to 
his  own  use. 

\_PTayer?^ 

Note.—  R.  S..  sees.  1241, 1326.  A  clerk  cannot  issue  process  until  a  writ- 
ten precipe  is  filed.  State  v.  Coffee,  6  O.  150.  County  commissioners  may 
sue  on  clerk's  bond  to  recover  fines,  etc.  State  v.  Sloane,  20  O.  337.  As  to 
suits  on  bonds  for  collateral  matters  in  faror  of  third  persons,  see  State  v. 
Nichol,  8  Heisk.  657 ;  Crews  v.  Taylor,  56  Tex.  461. 

Sec.  369.  Petition  ou  bond  of  county  recorder  for  negli- 
gence in  performance  of  duty. — 

{Caption?^ 

That  on  the day  of ,  18—,  the  defendant  C.  D., 

at  a  general  election,  was  duly  elected  recorder  of  the  county 

of ,  state  of  Ohio,  and  on  the day  of ,  IS—,  duly 

executed  his  bond  with  the  defendants  E.  B.  and  D.  E.  as  sure- 
ties, which  said  bond  was  duly  approved  by  the  county  com- 
missioners of  said  county,  and  deposited  in  the  office  of  the 
county  treasurer  of  said  county,  and  said  defendant  entered 
upon 'the  discharge  of  the  duties  of  said  office;  a  copy  of 
which  bond  is  attached  as  "  Exhibit  A.*' 

That  on  the day  of ,  IS—,  E.  O.  duly  executed 

and  delivered  to  plaintilff  a  mortgage  on  certain  real  estate 


§§370,371.]  BONDS.  343 

situated  in  said  county  to  secure  the  payment  of dollars, 

which  mortgage  was  a  first  lien  on  said  real  estate  and  was 
filed  with  said  C.  D.  in  his  said  otRce  by  plaintiff  for  record 

on  the day  of ,  18 — ,  with  a  request  that  the  same 

be  recorded,  and  the  same  was  by  him  recorded ;  but  by  rea- 
son of  the  neo'liorence  of  said  C.  D.  the  amount  stated  therein, 

and  for  which  said  mortgage  was  given,  was  recorded  as 

dollars,  instead  of dollars,  as  it  was  in  said  mortgage. 

Thereafter  said  real  estate  was  purchased  by  L.  A.,  who 
relied  upon  the  record  of  said  mortgage  as  recorded  by  said 
C.  D.,  having  no  knowledge  of  the  amount  in  the  deed  differ- 
ent from  that  shown  by  the  record. 

Tliat  plaintiff,  b}^  reason  of  the  negligence  of  said  C.  D.  in 
recording  said  deed,  was  able  to  collect  of  said  R.  O.  the  sum 

of  only dollars,  and  could  not  recover  the  balance,  to  wit, 

dollars,  as  against  said  real  estate  in  the  hands  of  said 

L.  A.,  and  said  li.  O.  had  in  the  meantime  become  totally  in- 
solvent, and  no  part  of  said  balance  could  or  can  be  collected 
of  and  from  him,  and  the  entire  amount  thereof,  with  interest, 
is  now  due  and  unpaid. 

[P/'tti/er.] 

Note. —  An  action  may  be  brought  on  recorder's  bond  for  his  failure  to 
record  mortgage.     Fox  v.  Thibult,  3.3  La.  Ann.  33. 

Sec.  370.  Actions  on  sheriff's  bonds. —  It  is  not  only  the 
duty  of  a  sheriff  who  has  received  money  in  his  official  capac- 
ity to  hold  and  dispose  of  the  same  properly  while  in  his 
office,  but  such  duty  continues  beyond  his  term.^  Sureties 
upon  a  second  bond  of  a  sheriff  are  liable  for  a  default  of  the 
latter  for  mone}''  in  his  hands  when  he  executes  a  bond  for 
his  second  term  which  he  fails  to  pay  over.-  And  failure  by 
a  sheriff  to  pay  over  money  to  persons  entitled  thereto,  which 
he  has  collected  from  the  state  on  a  cost-bill  for  the  conviction 
of  a  person  who  has  been  sent  to  the  penitentiary,  is  a  breach 
of  his  bond,  as  the  money  was  received  by  him  in  his  official 
ca|)acity,  even  though  not  in  strict  accordance  with  his  statu- 
tory duties,  and  an  action  will  lie  on  his  bond  for  such  de- 
fault.' 

See.  371.  Petition  on  sheriff's  bond,^ 

[Caption.] 

First  cause  of  action: 

The  said  plaintiff  avers  that  the  defendant  H.  H.  S.  was,  on 
the day  of .  18 — ,  duly  elected  to  the  office  of  sheriff 

«  King    V,   Nichols,   16    O.   S.    80 ;  bard  t.  Elder,  43  O.  S.  380-85.    See 

Brobst  V.  Skillen,    16  O.  S.  382;  Grif-  form  of  petition  in  this  case. 

fith  V.  Underwood,  16  O.  S.  389;  Sni-  2  Snider  v.  Alexander,  31  O.  S.  37a 

der  V.  Alexander,  31  O.  S.  378;  Hub-  3  state  v.  Newell,  2  O.  C.  C.  203. 


344 


BONDS. 


[§  371. 


of county,  Ohio,  for  the  term  of  two  years  from  the  first 

Monday  in  January.  IS — ,  gave  bond,  was  duly  qualified, 
and  acted  as  sheriff  of  said  count}'',  from  said  last-named 
date  until  the day  of ,  18 — .  That  defendants  [nam- 
ing them]  are  the  sureties  on  the  official  bond  of  said  H.  H.  S. 
as  sheriff  of  said  county  for  said  terra,  which  bond  is  in  the 
sum  of  S ,  and  was  approved  by  the  board  of  county  com- 
missioners of  said  county,  and  filed  with  the  auditor  thereof 
with  the  oath  of  said  H.  H.  S.  as  such  sheriff,  and  approval 
of  said  board  indorsed  thereon,  and  which  bond  was  condi- 
tioned that  the  said  H.  H.  S.,  as  such  sheriff  of  said  county 
[state  conditions],  a  true  copy  of  which  bond  is  hereto  an- 
nexed, marked  ''  A,"  and  filed  herewith. 

That  on  the day  of ,  18 — ,  an  action  for  the  parti- 
tion of  certain  real  estate  situate  in  said  county  was  begun  in 

said  court  of  common  pleas,  and  is  numbered on  the 

docket,   wherein  one was  plaintiff  and , 

said  plaintiffs  and  others  were  defendants,  and  such  proceed- 
ings w^ere  had  in  respect  thereto  that  at  the term,  18 — , 

of  said  court,  said  court  ordered  and  decreed  a  partition  of 
said  real  estate,  and  the  writ  of  partition  was  issued  and  di- 
rected by  said  court  to  said  H.  H.  S.,  as  sheriff  of  said  county,  on 

the day  of ,  IS — ;  and  such  further  proceedings  were 

had  in  said  action  that  an  order  of  sale  of  said  real  estate  was 

made  by  said  court  at  said term,  and  on  the day  of 

,  18 — ,  said  real  estate  was  sold  at  public  auction,  at  the 

door  of  the  court-house  in .  Ohio,  by  said  H.  H.  S.,  as  such 

sheriff,  for  % to  one ,  and  the  hand  payment  or  one- 
third  ])art  of  said  sura,  to  wit,  the  sura  of  S ,  was  received 

from  the  purchaser  thereof  on  said  day  of  sale  by  H.  H.  S., 
in  his  official  capacity  as  sheriff  of  said  county;  and  at  the 

term.  18 — ,  of  said  court,  the  said  sale  of  said  real  estate 

was  approved  and  confirmed  by  said  court,  and  said  H.  H.  S., 
as  such  sheriff,  ordered  to  execute  a  deed  conveying  said  real 
estate  to  said  purchaser  in  fee;  and  said  court  also  made  at 
said  last-named  term  thereof,  and  entered  on  its  journal,  an 

order  of  distribution  of  said  sum  of  8 ,  and  therein  decreed 

and  adjudged,  directed  and  ordered  said  H.  H.  S.,  as  such 
sheriff,  to  pay  to  said  plaintiff,  out  of  said  $ ,  the  sum  of 


That  said  plaintiff,  shortly  thereafter  and  long  before  the 
commencement  of  this  action,  made  demand  of  said  H.  H.  S., 

sheriff  as  aforesaid,  to  pay  to  him  said  sum  of  $ ,  which  he 

refused  and  neglected,  and  still  refuses  and  neglects,  to  do, 
and  has  unlawfully  and  fraudulenth'  converted  the  same  to 
his  own  use  and  benefit ;  and  there  is  due  plaintiff  from  de- 
fendants on  the  cause  of  action  herein  set  forth  $ ,  with 

interest  thereon  from .  Said  H.  H.  S.,  sheriff  as  afore- 
said, at  the  expiration  of  his  term  of  office,  did  not  pay  or 


§  372.]  BONUS.  345 

turn  over  to  his  successor  in  office  said  sum  of  $ ,  or  any 

part  thereof. 

Second  cause  of  action: 

[Make  the  usual  averment.']  And  avers  that  in  the  said 
order  of  distribution  of  the  proceeds  of  the  sale  of  said  real 
estate,  it  was  decreed  by  the  court,  and  the  said  H.  H.  S., 
sheriff  as  aforesaid,  was  ordered  and  directed  by  said  court, 
which  judgment,  decree  and  order  was  entered  on  the  journal 
thereof,  to  pay  to  said  plaintiff  out  of  the  second  payment  of 
the  purchase  price  of  said  real  estate,  whqji  said   payment 

named  be  received  by  said  sheriff,  the part  thereof,  to  wit, 

I ;  that  on  the day  of — — ,  18 — ,  the  purchaser  at  such 

sale  paid  to  said  H.  H.  S.,  sheriff  aforesaid,  the  said  second 

payment,  amounting  to  | ,  which  said  last-named  sum  was 

received  by  said  H.  H.  S.  in  his  official  capacity  as  sheriff  of 
said  county;  that  plaintiff,  long  before  the  commencement  of 
this  action,  made  demand  on  said  H.  H.  S.,  sheriff,  to  pay  to  him 

said  sum  of  $ -,  the part  of  said  second  payment,  which 

he  refused  and  neglected,  and  still  refuses  and  neglects,  to  do, 
and  has  unlawfully  and  fraudulently  converted  the  same  to 
his  own  use  and  benefit;  and  he  did  not,  as  he  was  bound  in 
law,  at  the  expiration  of  his  said  term  of  office,  pay  and  turn 
over  to  his  successor  said  last-named  sum  or  any  part  thereof, 
although  demand  was  made  of  him  by  said  successor  so  to  do; 
and  there  is  due  plaintiff  from  said  defendants  on  this  second 
cause  of  action,  $ ,  with  interest  thereon  from ,  18 — . 

Wherefore  plaintiff  prays  judgment  against  said  defendants 

for  $ ,  with  interest  on  % thereof  from  ,  IS — , 

and  $ thereof  from ,  IS — . 

Note. —  Bond,  when  to  be  given.  R.  S.  sees.  1203-1205.  In  an  action  by 
transferee  of  land  for  surplus  arising  from  a  sale  by  the  sheriff,  his  return 
reciting  receipt  of  the  money  is  conclusive  against  him  and  his  sureties. 
State  V.  Ruflf,  38  N.  E.  Rep.  124  (Ind.,  1893).  Suit  may  be  maintained  against  a 
sheriff  and  his  sureties  for  a  wrongful  seizure  of  property.  Van  Pelt  v. 
Littler,  14  Cal.  194;  People  v.  Schuyler,  4  N.  Y.  173;  Forsyth  v.  Ellis,  20 
Am.  Dec.  218;  Skinner  v.  Phillips,  4  Mass.  69. 

Sec.  372.  Petition  on  city  marshal's  bond. — 

[Caption.'] 

That  at  an  election  held  in  the  incorporated  village  of  H., 

in  the  county  of  D.,  in  the  state  of  Ohio,  on  the day  of 

,  IS — ,  the  said  defendant  S.  H.  was  duly  elected  mar- 
shal of  the  incorporated  village  of  H.  aforesaid,  and  there- 
after, on  the  day  of  ,   18 — ,  at  said   county,   the 

aforesaid  defendants,  S.  H.  as  principal,  and  M.  W.  and  J.  B. 
as  sureties,  duly  executed  a  bond  in  the  form  prescribed  by 
law,  and  jointly  and  severally  acknowledged  themselves  to  be 

held  and  firmly  bound  to  the  state  of  Ohio  in  the  sum  of 

dollars,  for  the  payment  of  Avhich  well  and  truly  to  be  made, 
thereby  jointly  and  severally  bound  themselves,  their  heirs, 


346  BONDS.  [§  373. 

executors  and  administrators,  which  said  writing  obligatory 
was  and  is  subject  to  a  certain  condition  thereunder  written 
(a  copy  of  which  is  hereto  attached  as  an  exhibit).  \_Copy 
condition  or  substance.] 

And  the  said  plaintiiff  herein  further  avers  that  said  writing 
obligatory  was  then  and  there  signed  by  said  defendants 
M.  W.  and  J.  B.  as  sureties. 

Said  plaintiff  further  avers  that  said  writing  obligatory 
was  accepted  and  approved  by  the  mayor  and  council  of  said 
incorporated  village  of  H.,  according'  to  law,  on   the  said 

day  of aforesaid,  and  that  afterwards  on  said 

(Jay  of  aforesaid,  the  said  defendant  S.  H.  took  upon 

himself  the  duties  of  said  marshal  of  said  incorporated  village 
of  H.,  and  assumed  to  act  and  did  act  as  such  marshal  from 
thence  forward,  up  to,  and  at  the  time  of,  the  committing  of 
the  Avrongs  and  grievances  hereinafter  set  forth  and  men- 
tioned. 

Plaintiff,  further  complaining  of  said  defendant,  says  that 
in  fact  said  defendant  S.  H.  did  not  faithfully  perform  the 
duties  of  the  office  of  said  marshal  aforesaid,  for  that  the  said 

defendant  S.  H.,  on  the day  of in  the  year  18— 

in  said  incorporated  village  of  H.  aforesaid,  and  while  said 
writing  obligatory  was  in  full  force  and  effect  according  to 
the  provisions  thereof,  as  said  marshall  illegally  and  with 
force  arrested  this  plamtiff,  and  then  and  there,  without  any 
reasonable  or  probable  cause  therefor,  unlawfully  imprisoned 
this  plaintiff  and  unlawfully  kept  and  detained  plaintiff  in 
prison  there,  without  any  reasonable  or  probable  cause  there- 
for, for  the  space  of  — —  hours  next  following,  and  other 
wrongs  then  and  there  did  to  the  said  plaintiff,  to  his  damage 
in  the  sum  of dollars. 

Wherefore  plaintiff  demands  judgment  against  said  defend- 
ants for  the  sum  of dollars. 

Note.— From  Hart  v.  Hughes,  Supreme  Court,  No.  1035,  Defiance  county. 
This  may  be  used  as  a  form  ou  bond  of  policeman.  A  statutory  bond  must 
be  conditioned  and  executed  according  to  all  statutory  requirements.  How- 
ard V.  Brown,  21  Me.  385.  If  not  good  as  a  statutory  bond  it  may  be  good 
as  a  common-law  bond.  Goodrum  v.  Carroll,  37  Am.  Dec.  564,  566,  and 
note.  Imperfect  official  bonds,  see  2  Am.  &  Eng.  Enc.  of  Law,  4662.  If 
the  condition  be  contrary  to  the  statute  it  is  void.  Id.,  p.  467,  and  cases  cited. 
The  bond  of  an  officer  is  valid  as  a  common-law  bond  when  regular  in  all 
respects,  but  payable  to  obligee  other  than  as  required  by  statute.  7  Jones 
(N.  C),  258 ;  3  Dev.  L.  297 ;  9  Iredell  L.  250 ;  3  Brock.  C.  C.  115.  But  it  is  pro- 
vided by  statute  in  Ohio  that  bonds  of  municipal  officers  shall  be  good  if 
conditioned  that  the  person  appointed  or  elected  shall  faithfully  perform 
his  duties.     R,  S.,  sec.  1738. 

Sec.  373.  Petition  on  constable's  bond. — 

l^J^or  failure  to  account  for  money.'] 
\_Caption.'\ 

That  on  the day  of  ,  18—,  at  a  general  township 

election,  the  defendant  C.  D.  was  duly  elected  a  constable  in 


§  373.]  BONDS.  347 

and  for  the  township  of  ,  of  the  county  of  ,  and 

state  of  ;  and  on  the  daj  of  ,  18 — ,  duly  exe- 
cuted, with  his  co-defendants  as  his  sureties,  his  bond  for  the 
faithful  performance  of  his  duties  as  such  constable,  in  the 

penal  sum  of  $ [as  in  ante,  seo.  372'],  which   bond  was 

duly  approved  and  deposited  in  the  office  of  the  clerk  of  said 
township. 

That  on  the day  of  ,  18 — ,  the  plaintiff  recovered 

before  J.  P.,  a  justice  of  the  peace  of  said  township,  a  judg- 
ment for  dollars  against  R.  O.,  which  judgment  is  still 

in  force  and  unsatisfied.* 

That  on  the day  of  ,  18 — ,  said  justice  duly  issued 

an  execution  on  said  judgment  to  said  C.  D.  as  such  constable, 
to  be  executed,  upon  which  he,  as  such  constable,  collected 
dollars. 

That  on  the day  of  ,  18 — ,  the  plaintiff  demanded 

of  said  C.  D.,  less  his  costs  and  charges,  the  payment  of  said 
dollars,  which  he  failed  and  refused  to  pay,  and  con- 
verted to  his  own  use. 

[Or,  for  failure  to  levy,'] 

\_Fro7n  *.]  That  on  the day  of  ,  18 — ,  said  jus- 
tice issued  to  said  C.  D.,  who  was  then  and  there  acting  as 
such  constable,  on  said  judgment  an  execution,  and  delivered 
the  same  to  him. 

That  at  the  time  said  execution  came  to  the  hands  of  the 
said  C.  D.  said  O.  R.  owned  personal  property,  subject  to  exe- 
cution, in  said  county,  upon  which  the  same  could  have  been 
levied,  sufficient  to  satisfy  the  whole  of  said  judgment  and 
costs. 

That  said  C.  D.  failed  and  neglected  to  levy  said  execution, 

and  on  the day  of  ,  18 — ,  returned  the  same  wholly 

unsatisfied  [or,  so  returned  the  same  indorsed  as  follows:  "No 
property  within  mv  bailiwick  whereon  to  levy.  0.  D.,  Con- 
stable"]. 

Wherefore  plaintiff  has  been  damaged  in  the  sum  of 

dollars. 

[For  accepting  irisujjicient  delivery  bond.'] 

[From  *.]     That  on  the day  of  ,  18 — ,  said  J.  P. 

issued  an  execution  on  said  judgment  to  said  C  D.,  who  was 
then  and  there  acting  as  such  constable,  and  delivered  the 
same  to  him. 

That  said  C.  D.  on  the day  of  ,  18 — ,  levied  said 

execution  upon  personal  property  of  the  said  R.  O.  of  suffi- 
cient value  to  satisfy  said  judgment,  contract,  costs  and  ac- 
cruing costs;  and  on  the day  of  ,  18 — ,  said  R.  O. 

tendered  to  said  C.  D,  a  delivery  bond  with  L.  A.  as  surety 
thereon,  conditioned  to  deliver  to  said  C.  D.  said  property 
whenever  demand  was  made  therefor,  and  demanded  a  re- 
delivery of  said  property  to  him,  which  said  bond  said  C.  D. 


348  BONDS.  [^  374* 

accepted  and  approved  and  returned  said  property  to  said 
R.  O. 

That  on  the day  of  ,  18 — ,  said  personal  property 

was  destroyed  by  fire,  and  said  E.  O.  then  had  and  now  has 
no  other  property  upon  which  said  execution  could  then  or 
now  be  levied,  and  he  is  wholly  insolvent. 

That  said  L.  A.,  at  the  time  of  execution  of  said  delivery 
bond,  was  and  still  is  wholly  insolvent. 

That  said  judgment,  interest  and  costs  are  wholly  unpaid. 

{Prayer^  etc.'] 

Note. —  R.  S..  sec.  1516.  Justice  of  the  peace  has  no  jurisdiction  in  ac- 
tions on  bonds.  Hornbuckle  t.  State,  37  O.  S.  361.  The  seizure  of  wrong 
goods  is  a  breach  of  bond  for  which  action  lies.  State,  etc.  v.  Jennings,  4 
O.  S.  418,  in  which  a  form  of  petition  is  gi .en.  Receiving  and  filing  a  con- 
stable's bond  and  the  officer's  acceptance  estops  the  trustees  from  denying 
acceptance.     Barret  v.  Reed,  2  O.  409 ;  Royer  v.  Pugh,  1  Disn.  443. 

Sec.  374.  Petition  on  bond  of  justice  of  peace. — 

[Captiofi.'] 

Plaintiff  says  that  on  the day  of ,  18 — ,  at  a  general 

election  for  the  township  of  ,  county  of ,  Ohio,  the 

defendant  A.  B.  was  duly  elected  a  justice  of  the  peace  in  and 

for  said  township ;  and  thereafter  on  the day  of ,  18 — , 

entered  into  a  bond  as  required  by  law  in  the  sum  of  $ , 

with  C.  D.  and  E,  F.,  defendants  herein,  as  his  sureties,  which 
said  bond  was  approved  by  the  trustees  of  said  township,  and 
filed  with  the  township  clerk.  [Set  forth  conditions  after 
manner  in  ante,  sec.  372.] 

[For  failure  to  issue  execution.'] 

That  on  the day  of ,  18 — ,  and  during  his  term  of 

office,  the  plaintiff  recovered  a  judgment  before  said  C.  D. 

against  It.  O.  for dollars  and  costs  taxed  at dollars, 

which  now  remains  of  record  on  the  docket  of  said  C.  D.  un- 
satisfied and  unappealed  from. 

That  on  the day  of ,  18 — ,  the  plaintiff  requested 

said  C.  D.  to  issue  an  execution  on  said  judgment,  but  he  failed 
and  refused,  and  still  fails  and  refuses,  to  do  so. 

That  at  the  time  the  relator  requested  said  C.  D.  to  issue  an 
execution  [or,  at  the  time  said  C.  I),  was  recpiired  by  law  to 
issue  an  execution]  on  said  judgment  the  said  R.  O.  owned  in 
said  county  personal  property  of  the  value  of dollars  sub- 
ject to  execution,  and  if  an  execution  had  been  issued  on  said 
judgment  the  amount  due  thereon,  with  interest,  costs  and 
accruing  costs,  could  have  been  made,  but  said  R.  O.  has  since 
become  totally  insolvent,  and  said  judgment,  interest,  costs 
and  accruing  costs  are  now  unpaid. 

[Or,  for  failure  to  pay  over  money  collected^ 

[Commencement  as  at  *.]  That  afterward,  to  wit,  on  the 
day  of ,  18 — ,  said  R.  O.  paid  said  C.  D.,  as  such  jus- 
tice, the  amount  of  said  judgment,  to  wit, dollars. 


§  375.]  BONDS.  34:9 

That  on  the day  of ,  13 — ,  the  plaintiff  demanded 

of  said  C.  D.  the  payment  thereof  to  him,  but  he  has  failed 
and  refused  to  pay  the  same,  or  any  part  thereof,  and  has 
converted  the  same  to  his  own  use. 

Note. —  Requirement  as  to  bond.  R.  S.,  sees.  579-80.  There  need  not  be  an 
express  approval  of  a  justice's  bond  to  bind  the  parties.  Place  v.  Taylor, 
22  O.  S.  317-20.  As  to  failure  to  enter  judgment  see  Stallcup  v.  Baker,  18 
O.  S.  544.  Neglect  to  issue  execution  is  a  breach  of  his  bond.  Gaylor  v. 
Hunt.  23  O.  S.  255.  It  must  be  a  joint  suit  against  all  the  obligors  in  the 
bond.     Aucker  v.  Adams,  23  O.  S.  543. 

Sec.  375.  Actions  on  guardian's  bonds  —  Pleading. —  A 

guardian's  bond  is  not  invalidated  by  any  informality  in  the 
bond  itself,  or  in  the  appointment  of  the  guardian;^  nor  is  it 
necessary  that  a  previous  liquidation  of  the  amount  due  from 
the  principal  be  made  before  an  action  can  be  maintained 
against  the  sureties ;  -  but  a  right  of  action  on  a  bond  against  the 
sureties  will  not  accrue  until  the  amount  due  from  the  guard- 
ian has  been  first  ascertained  by  a  settlement  of  his  accounts.' 
A  suit  in  equity  on  a  guardian's  bond  to  compel  an  account 
cannot  be  maintained  unless  the  jurisdiction  of  the  probate 
court  was  ineffectual,  which  fact  must  be  set  forth  in  the  peti- 
tion, otherwise  it  will  be  assumed  that  it  does  not  exist;*  and 
the  rule  is  not  different  as  to  a  delinquent  guardian  who  is 
absent  from  the  state  and  his  residence  unknown.^  It  cannot 
be  urged  as  a  defense  by  the  sureties  that  the  minor  neglected 
to  bring  suit  to  compel  his  guardian  to  settle  his  accounts, 
and  that  one  of  the  sureties  has  in  the  meantime  become  in- 
solvent.'' The  refusal  of  a  guardian  to  pay  over  money  in  his 
hands  to  a  minor  or  his  attorney  after  the  guardianship  has 
ceased  does  not  constitute  a  breach  which  will  give  a  right  to 
the  minor  by  next  friend  to  bring  suit  against  the  surety  on 
the  bond;'''  nor  is  a  guardian  who  himself  uses  his  ward's 
money  guilty  of  a  breach  if  he  has  the  money  to  pay  over  on  a 
legal  demand.^  The  failure,  however,  of  a  guardian  to  settle 
his  accounts  within  the  time  prescribed  by  law,  or  to  pay 

1 R.  S.,  sec.  6263.  <  Gorman  v.  Taylor,  43  O.  S.  86. 

2 State  V.  Humphrey.  7  O.  223,  224.  5 Schwab  v.  Rappold,  12  W.  L.  B. 

3  Newton   v.   Hammond,  38  O.  S.  197. 

430 ;  Critchett  v.  Hall.  56  N.  H.  324  ;  « Newton  v.    Hammond,   38  O.  S. 

Connelly  v.  Weatherly.  33  Ark.  658 ;  430. 

Chapman  v.  Chapman,  32  Ala.  106 ;  '  Favorite  v.  Booher,  17  O.  S.  548. 

•O'Brien  v.  Strang,  42  la.  043.  ^Case  v.  State,  10  W.  L.  J.  163. 


350  BONDS.  [§  375. 

over  to  the  ward  after  arriving  at  age  the  amount  due  him,^ 
are  clear  breaches  of  his  bond.  Where  a  guardian  has  given 
two  bonds  and  sureties  upon  the  first  have  been  released,  the 
liability  of  both  sets  of  sureties  for  a  conversion  of  funds  by 
the  guardian  will  depend  upon  when  they  were  received  and 
when  embezzled,  the  rule  being  that  the  sureties  on  the  bond 
which  was  in  full  force  and  effect  when  the  guardian  received 
the  money  and  converted  it  to  his  own  use  are  liable  there- 
for.2  But  where  money  has  been  received  by  a  guardian 
from  the  sale  of  real  estate,  and  a  special  bond  is  given  to 
cover  the  money  so  arising,  from  which  one  of  the  sureties  is 
released  and  a  new  bond  executed,  and  default  arises  upon 
resignation  of  the  guardian  by  his  failure  to  pay  over  the 
amount  due  his  ward,  the  sureties  on  the  second  bond  are  lia- 
ble without  regard  to  the  source  from  which  the  money  came 
into  his  hands.' 

Sureties  will  not  be  exonerated  from  a  default  of  a  guard- 
ian by  reason  of  the  fact  that  he  resigns  and  removes  to 
another  state,  where  he  is  reappointed,  files  an  account  and 
settles  upon  a  different  basis  than  in  the  state  of  his  original 
appointment.^  Although  an  allegation  that  there  has  been  a 
settlement  of  a  guardian's  account  be  necessary,^  yet  an  omis- 
sion thereof  will,  in  the  absence  of  objection,  be  disregarded 
if  the  evidence  disclosed  shows  that  such  was  the  fact.^  In 
a  petition  on  a  guardian's  bond  containing  a  recital  of  the  ap- 
pointment by  the  proper  authority,  the  obligors  are  estopped 
from  denying  the  fact  thus  recited,  or  from  questioning  the 
validity  of  the  appointment.^  Where  conversion  of  a  ward's 
money  is  charged,  payment  in  whole  or  in  part  may  be  shown 
under  a  general  denial,^  and  it  may  also  be  shown  that  an  ap- 

1  Meier  v.  Harancourt,  8  W.  L.  sets  of  sureties,  see  Corrigan  v.  Fos- 
B.  29.  ter,  51  O.  S.  — ;  31  W.  L.  B.  275. 

2  Eichelberger   v.    Gross,  42  O.  S.  ^Tuttle  v.  Northup,  44  O.  S.  178. 
549.     In  such  cases  parol  evidence  is  See  Moody  v.  State,  84  Ind.  432. 
admissible  to  show  when  the  money  ^  Penn  v.  McBride,  1  O.  S.  285. 
was  received  and  when  embezzled.  ^  State  v.  Humphreys,  7  O.  224. 

It  has  been  held  that  sureties  on  an  *  Meier  v.  Harancourt,  8  W.  L.  B. 

additional  or  second  bond  are  liable  29. 

for    failure    to    pay     over    money  ■?  Shroyer  v.    Richmond,   16  O.  S. 

whether  received  prior  or  subsequent  455;    Douglass  v.   Scott,   5  O.    198; 

to  the  bond.     Case  v.  State,  10  W.  L.  Hudson  v.  Winslow,  35  N.  J.  L.  437; 

J.  163.     As  to  liability  of  different  Bates'  Pldg.  360,  and  cases  cited. 

f  State  V.  Roche,  94  Ind.  372. 


§  376.]  BONDS.  351 

plication  of  the  funds  has  been  made  pursuant  to  orders  of  the 
court  ;^  and  where  it  is  alleged  that  a  guardian's  bond  has 
been  mislaid  or  lost,  it  may  be  shown  under  a  general  denial 
that  the  defendants  never  executed  the  alleged  bond.^ 
Sec.  376.  Petition  on  guardian's  bond.— 

[Copt!  071.'] 

Plaintiff  says  that  on  the day  of ,  18 — ,  the  defend- 
ant C.  D.  was  duly  appointed  by  the  probate  court  of 

county,  Ohio,  guardian  of  A.  B.,  the  plaintiff,  then years 

of  age.    That  said  C.  D.  as  such  guardian  entered  into  a  bond, 

as  required  by  law,  in  the  sum  of  $ ,  with  W.  Iv.  C.  and 

R.  M.  as  sureties,  which  said  bond  was  duly  approved  by  said 
court,  and  was  upon  the  condition  that  the  said  C.  D.,  as  such 
guardian,  should  discharge  with  fidelity  the  trust  reposed  in 
him  and  render  an  accurate  statement  of  his  transactions,  with 
a  just  account  of  the  profits  arising  and  accruing  from  the 
real  and  ])ersonal  estate  of  his  said  ward  and  deliver  up  the 
same  to  the-  court  when  thereunto  required,  a  cojiy  of  which 
bond  is  hereunto  attached  marked  "Exhibit  A." 

[2.  For  failure  to  pay  money  to  vxird.'] 

That  thereafter  there  came  into  the  hands  of  said  C.  D.  as 

such  guardian  the  sum  of dollars,  which  belonged  to  this 

plaintiff. 

That  plaintiff  has  arrived  at  the  age  of  maturity  and  has 
demanded  an  accounting  with  said  defendant  and  the  payment 
to  him  of  the  amount  in  his  hands  as  such  guardian,  but  he  has 

failed  to  pay  over  to  him  said  sum  of dollars  or  any  part 

thereof,  or  to  account  for  the  same  in  any  way,  and  has  con- 
verted the  same  to  his  own  use. 

\_<h\o.  Where  guardian  has  removed  from  state  and  failed 
to  render  account^ 

That  in  ,  IS — ,  the  said  C.  D.  removed  from  his  resi- 
dence in county,  Ohio,  to  the  state  of  ]Sr.,  where  he  then 

located  and  still  remains.  That  since  his  residence  in  said 
state  said  guardian  has  refused  and  neglected  to  render  any 
statement  of  his  transactions  to  the  probate  court  or  to  plaint- 
iff: and  that  plaintiff  has  been  unable  to  demand  of  said 
guardian  the  amount  due  him. 

{Averiiient  when  surety  is  deceased.'] 

That  on  the day  of ,  18 — ,  B.,  one  of  the  sureties 

on  said  bond,  died,  and  on  the  day  of ,  IS — ,  R.  was 

duly  appointed  administrator  of  his  said  estate  by  the  probate 
court  of county,  Ohio,  and  is  still  acting  as  such  admin- 
istrator, with  assets  in  his  hands  to  pay  the  debts  of  such 
estate. 

That  on  the day  of  ,  18 — ,  plaintiff  presented  his 

1  State  T.  White,  127  Ind.  451.  2  Millikan  v.  State,  70  Ind.  810. 


■352  liONDs.  [  ■  ;i77. 

claim  to  said  R.  as  such  administrator,  and  said  administrator 
rejected  said  claim  and  declined  and  refused  to  ])ay  the  same 
unless  a  judgment  was  rendered  against  him  as  such  adminis- 
trator for  the  amount  of  said  claim. 

Wherefore  plaintiff  asks  judgment  against  said  defendants, 
etc. 

Note. —  Surety  is  responsible  for  delinquencies  occurring  before  he  is  re- 
lieved and  a  new  bondsman  substituted.  Bell  v.  Rudulph.  12  S.  Rep.  153 
(Miss.,  1892).  It  has  been  held  that  the  bond  of  a  guardian  need  not  strictly 
follow  the  provisions  of  the  statute.  Brunson  v.  Brooks,  68  Ala.  248.  Sure- 
ties on  guardian's  bond  may  on  payment  of  the  debt  due  the  ward  be  sub- 
rogated to  the  rights  of  the  ward.  Adams  v.  Gleaves.  10  Lea,  367.  It  is 
held  that  a  cause  of  action  does  not  arise  until  after  a  final  settlement  by 
the  guardian,  and  that  the  statute  of  limitations  begins  to  run  from  that 
time.     Moore  v.  Nichols.  39  Ark.  145 ;  Connelly  v.  Weatherby,  33  Ark.  658. 

Sec.  377.  Petition  on  guardian's  bond  by  succeeding 
guardian. — 

The  said   plaintiff,  W.  A.  K.,  as  guardian  of  C.  F.  C,  for 

cause  of  action  herein  says  that  on  or  about  the day  of 

,  18 — ,  the  said  defendant,  S.  S.  B.,  was  appointed  by  the 

probate  court  of   county,  Ohio,  guardian  of    the*  said 

C.  F,  C,  who  was  then  a  resident  of  said  county,  an  in- 
fant. Tiiat  on  the  said  day  of ,  18 — ,  the  defend- 
ants made  and  delivered  to  the  judge  of  the  said  probate 
court  their  writing  obligator}'-  of  that  date,  and  thereby 
bound  themselves  jointly  and  severally  to  pay  to  the  state  of 

Ohio  the  sum  of dollars,  a  copy  of  which  bond  is  hereto 

attached  as  an  exhibit ;  that  on  the  same  day  the  bond  and 
sureties  were  approved  by  said  court. 

That  the  said  bond  was  and  is  suljject  to  the  condition  that 
it  should  become  void  if  the  said  S.  S.  B.  should  faithfully 
discharge  his  duties  as  such  guardian,  and  otherwise  to  be 

and  remain  in  full  force.     That  on  the day  of ,  18 — , 

the  said  S.  S.  B.  tendered  his  resignation  as  such  guard- 
ian, which  was  accepted  by  the  probate  court,  and  said 
defendant  ordered  to  file  his  final  account,  which  was  ac- 
cordingly done.     That  thereupon,  on  the  day  of , 

18- — ,  the  plaintiff  herein  was  appointed  by  said  probate  court 
to  be  guardian  of  said  C.  F.  C.  as  a  lunatic  or  person  of  un- 
sound mind  [or,  minor],  and  on  that  dav  gave  bond,  with  sure- 
ties, according  to  law,  which  was  approved  by  the  court,  and 
he  entered  upon  the  discharge  of  his  duties  as  such  guardian. 
That  during  the  time  that  the  said  S.  S.  B.  was  so  acting  as 
guardian  as  aforesaid,  there  came  into  his  hands  of  the  mon- 
eys and  estate  of  the  said  C.  F.  C.  the  sum  of  dollars; 

that  said  S.  S.  B.,  on  the day  of ,  18—,  filed  his  final 

account  as  such  guardian  in  said  jirobate  court,  which  was  on 

the day  of ,  18 — ,  settled,  and  it  was  then  found  and 

adjudged  by  said  probate  court  that  there  was,  and  in  fact 


§§  378,  379.]  Bor^Ds.  353 

there  then  was,  in  the  hands  of  said  S.  S.  B.  of  the  moneys 
aforesaid,  the  sum  of  — —  dollars,  interest  being  computed  to 
the  said  last-named  day,  and  which  sum  the  said  probate 
court  then  ordered  the'  said  S.  S.  B.  forthwith  to  pay  to  this 

plaintiff.     That  on  the  day  of ,  18 — ,  the  plaintiff, 

as  such  guardian,  demanded  of  the  said  S.  S.  B.  the  pay- 
ment of  last-named  sum;  but  he  has  not  paid  the  same  or 

any  part  thereof,  except  the  sum  of dollars. 

The  plaintiff  demands  judgment  against  the  defendants  for 
the  sum  of dollars  with  interest  from . 

Note.—  From  Kaine  v.  Bell,  36  O.  S.  462. 

Sec.  378.  Actions  on  indemnity  bonds. —  In  an  action  on  a 
bond  of  indemnity  conditioned  that  the  principal  obligor  shall 
pay  any  judgment  which  may  be  recovered  against  the  obligee, 
it  is  not  necessary  to  either  aver  or  prove  payment  of  the 
judgment  by  the  obligee  prior  to  bringing  the  suit.^  It  seems 
to  be  the  settled  rule  that  if  a  party  sign  a  contract  to  indem- 
nify simply,  and  nothing  more,  damages  must  be  shown  be- 
fore he  is  entitled  to  bring  suit;  but  if  he  has  affirmatively 
contracted  to  do  a  certain  act,  it  is  no  defense  to  say  that  he 
has  not  been  indemnified,  but  his  right  of  action  is  complete 
when  he  becomes  liable  to  pay.^  In  an  action  on  an  indemnity 
bond  taken  by  a  sheriff  in  attachment  proceedings,  it  may  be 
urged  as  a  defense  thereto  that  the  officer  b}''  collusion  and 
fraud  permitted  a  judgment  to  be  entered  against  him.^  It 
being  a  rule  of  pleading  that  a  complainant  need  not  an- 
ticipate a  negative  matter  of  defense,  if  a  plaintiff  in  a  suit 
on  an  indemnity  bond  for  the  recovery  of  what  he  has  been 
compelled  to  pay  has  no  means  of  reimbursement,  or  has 
been  reimbursed,  he  need  not  aver  the  non-existence  of  any 
such  facts,  as  that  would  be  matter  of  defense.* 

Sec.  379.  Petition  on  indemnity  bond. — 

Plaintiff  says  that  the  said  defendant,  on  the day  of 

,  18 — ,  caused  an  execution  to  be  issued  from  the 

court  of county,  upon  a  judgment  which  he  had  theretofore 

1  Martin  v.  Bolenbaugh,  42  O.  S.  8  Nev.  121 ;  McBeth  v,  Mclntyre,  57 
508.  Cal.  49 ;   Gregory  v.  Hartley,  6  Neb. 

2  Wilson  V.  Stilwell,  9  O.  S.  467;    356. 

Port  V.  Jackson,  17  John.  239;  Mann  ^Mihalovitch   v.    Barlass,    36  Neb. 

V.  Eckford,  15  Wend.  502;  Ex  parte  491 ;  54  N,  W.  Rep.  826  (1893). 

Negus,  7  Wend.  449;  Lathrop  v.  At-        *  Romer  v.  Contmer,  53  Minn. ; 

wood,  21  Conn.  117 ;  Jones  v.  Cliilds,  54  N.  W.  Rep.  252  (1893). 
23 


354  BONDS.  [§  380. 

recovered  in  said  court,  ag'ainst ,  which  execution  was 

delivered  to  this  plaintiff,  who  was  then  sheriff  of  said  county. 
That  plaintiff  at  the  request  of  the  defendant  levied  said  exe- 
cution upon  certain  personal  property  as  goods  belonging  to 

the  said ,  but  which  were  afterwards  claimed  by  one 

.     That  the  said  defendant,  in  consideration  of  and 

upon  the  promise  of  this  plaintiff  to  sell  said  goods,  executed 
and  delivered  to  plaintiff  a  bond  of  indemnity  conditioned 
that  \]iere  state  the  substance  of  the  conditions']  a  copy  of  which 
bond  is  attached  as  an  exhibit  and  filed  herewith.  That  there- 
upon said  plaintiff  sold  said  goods  under  said  execution  and 
paid  the  proceeds  thereof  to  the  said  defendant. 

That  thereafter,  on  the  day  of  ,  18 — ,  said 

brought  an  action  against  this  plaintiff  for  the  recovery 

of  the  value  of  said  goods  so  levied  upon  under  said  execu- 
tion, and  on  the  day  of  ,  18 — ,  recovered  a  judg- 
ment against  this  plaintiff  for  the  sum  of  dollars,  the 

value  of  said  goods,  and dollars  costs,  which  said  sum  of 

money,  together  with  the  additional  sum  of  dollars  as 

necessary  expenses  in  defending  said  action,  this  plaintiff 
was  compelled  to  pay.  That  plaintiff  duly  notified  the  said 
defendant  of  the  pendency  of  said  action  against  him  by  the 

said ,  and  that  judgment  was  so  rendered  against 

plaintiff  in  said  cause  as  aforesaid,  and  demanded  of  said  de- 
fendant that  he  be  reimbursed  for  the  amount  of  said  judg- 
ment so  as  aforesaid  rendered  against  and  paid  by  him,  but 
that' said  defendant  had  failed  and  neglected  to  pay  the  same 
and  save  this  plaintiff  harmless  as  provided  in  said  bond. 

Wherefore  plaintiff  asks  judgment  against  said  defendant 
in  the  sum  of  dollars. 

Note. —  Notice  should  be  averred.  Reynolds  v.  Maa^ness,  3  Ired.  126.  The 
object  ia  giving  notice  of  the  action  is  that  the  indemnitor  shall  be  bound 
as  to  amount  of  damages.     Miller  v.  Rhoades,  20  O.  S.  494, 

Sec.  380.  Actions  on  injnnction  bonds. —  An  injunction 
bond  must  be  construed  strictly  in  favor  of  the  sureties.' 
Where  it  is  conditioned  to  pay  all  the  costs  if  it  finally  be  de- 
cided that  the  injunction  ought  not  to  have  been  granted,  a 
dismissal  of  the  action  on  motion  because  the  summons  has  not 
been  served,  and  the  injunction  dissolved,  will  not  constitute 
a  breach  for  which  an  action  will  lie  against  the  sureties.^ 
Under  a  statute  requiring  execution  to  be  issued  and  returned 
nulla  lona  before  the  successful  party  may  bring  suit  on  an 
appeal  or  injunction  bond,  it  has  been  considered  necessary  to 

1  Williamson  v.  Hall,  1  O.  S.  190;        2Krug  v.  Bishop,  44  O.  S.  23L 
Hall  V.  Williamson.  9  O.  S.  17. 


§  381.]  BONDS.  855 

aver  that  such  execution  has  been  so  issued  and  returned  nidla 
hona}  Where  the  provisions  of  an  injunction  are  that  obligors 
will  pay  all  money  and  costs  due  and  to  become  due,  and  the 
same  is  dissolved,  the  person  restrained  may  sustain  an  action 
on  the  bond  for  the  recovery  of  such  damages  as  he  may  sus- 
tain by  reason  thereof;  '^  and  the  obligors  are  sometimes  liable 
though  an  action  enjoined  is  never  tried  on  its  merits.^  But 
the  general  rule  is  that  sureties  cannot  be  compelled  to  pay 
until  it  has  been  decided  that  the  injunction  ought  not  to  have 
been  issued.*  A  petition  on  a  bond  for  injunction  which  states 
that  the  judgments  have  been  in  all  things  performed,  and 
that  the  claim  was  then  due,  sufficiently  shows  the  final  dis- 
position of  the  suit,  and  that  action  is  not  prematurely  brought.* 
Attorney's  fees  in  procuring  a  dissolution  of  the  injunction 
may  be  collected  as  part  of  the  damages  sustained;  and  it  will 
be  sufficient  to  aver  that  a  mere  liability  has  been  incurred.* 

Se<?.  381.  Petition  on  injunction  bond. — 

Plaintiff  says  that  the  defendant,  on  the day  of , 

18 — ,  commenced  an  action  in  the court  of county, 

Ohio,  agamst  this  plaintiff,  and  obtained  a  temporary  order 
to  restrain  this  plaintiff  from  \^here  state  the  suhstance  of  the 
order'] ;  that  after  the  granting  of  said  order  and  to  secure  the 
said  injunction  against  the  plaintiff,  said  defendant  entered 

into  a  writing  obligatory,  with as  surety  (a  copy 

of  which  is  hereto  annexed  as  an  exhibit),  which  was  approved 
by  and  tiled  with  the  clerk  of  said  court,  thereby  binding  the 

said  defendants  to  the  plaintiff  in  the  sum  of dollars,  which 

said  sum  was  so  fixed  by  said  court,  the  conditions  of  which 
bond  were  that  [here  state  the  substance  of  the  conditions']. 

Plaintiff  further  says  that,  upon  the  trial  of  said  cause,  said 
court  of county,  on  the day  of ,  18 — ,  de- 
cided that  said  temporary  injunction  ought  not  to  have  been 
granted,  and  dissolved  the  same;  that  by  reason  of  the  grant- 
ing of  said  temporary  order,  plaintiff  has  sustained  damages 

in  the  sum  of  dollars  in  this,  to  wit:  [here  state  sjjecial 

(jroimds  of  damage?^ 

Wherefore  he  asks  judgment,  etc. 

Note. —  Plaintiff  may  recover  the  value  of  his  time  lost.  Muller  v.  Fern, 
35  la.  430;  Skrainka  v.Oertel,  14  Mo.  App.  474;  30  Mo.  App.  30;  79  Mo.  80. 

1  Hillyer  v.  Richards,  13  0. 147.  But  <  Krug  v.  Bishop.  44  O.  S.  221. 
there  is  no  sucli  statute  in  Ohio.  *  Midland  Ry.  v.  Stevenson,  38  N.  R 

2  Roberts  v.  Dust,  4  O.  S.  502.  Rep.  254  (Ind.,  1893). 

3  Bishop  v.  Bascoo,  7  W.  L.  B.  343.  6  Noble  v.  Arnold,  23  O.  S.  264. 


356  BONDS.  [§§  382,  383. 

Sec  382.  Petition  on  replevin  bond.^ 

On  the day  of ,  18 — ,  the  defendant  commenced 

an  action  in  the  court  of against  this  plaintiff  to  recover 

possession  of  certain  personal  property.  That  in  said  action 
said  defendants  entered  into  an  undertaking  to  this  plaintiff 
(a  copy  of  which  is  hereto  attached),  and  thereby  became 
bound  "to  the  plaintiff  in  the  sura  of dollars,  the  condi- 
tions of  which  bond  were  that  the  said would  duly 

prosecute  his  said  action  and  pay  all  damages  which  might  be 
awarded  against  him.     That  upon  trial  of  said  cause  in  the 

said  court  of ,  on  the day  of ,  18—,  judgment 

was  rendered  against  the  defendant  herein,  wherein  it  was 
ordered  that  this  plaintiff  should  hav^e  said  goods  and  chattels 
returned  to  him,  or,  in  case  a  return  could  not  be  had,  to  re- 
cover from  said  defendant  the  sum  of dollars.     That  said 

defendant  has  not  so  returned  said  property  or  paid  any  part 
of  said  judgment.  That  on  the day  of ,  18 — ,  an  exe- 
cution was  issued  to  the  sheriff  of county  upon  said 

judgment,  which  was  returned  wholly  unsatisfied,  and  no 
part  of  said  judgment  has  been  paid. 

Wherefore  plaintiff  prays  judgment  in  the  sum  of  

dollars. 

Note.—  R  S.,  sec.  5819,  Am.  88  O.  L.  273. 

Parties.—  Sheriff  may  be  party  plaintiff.  Cheseldine  v.  Mathers,  2  Diso. 
692.  See  Schafer  v,  Marienthal,  17  O.  vS.  183.  Defendant  as  real  party  in 
interest  may  be  substituted  as  plaintiff.  Hanna  v.  Petroleum  Co.,  33  O.  S, 
632;  R.  S.,  sec.  5018. 

Execution. —  A  suit  cannot  be  instituted  until  an  execution  issued  in 
favor  of  the  defendant  in  the  action  has  been  returned  unsatisfied.  R  S., 
sec.  5830. 

Sec.  383.  Petition  on  title  bond. — 

[Caption.'] 

That  on  the day  of ,  18—,  the  plaintiff  purchased 

from  the  defendant  C.  D.  certain  real  estate  described  as  fol- 
lows: [descripiion],  for  which  he  agreed  to  pay  defendant 
the  sum  of dollars  on  the day  of ,  18 — . 

That  in  consideration  thereof  said  CD.,  with  his  co-defend- 
ants, executed  to  the  plaintiff  said  bond,  conditioned  that  he 
would,  on  payment  of  said  purchase-money  at  the  time  speci- 
fied therein  for  payment,  convey  said  real  estate  to  the  plaint- 
iff free  from  incumbrance  by  good  and  sufficient  warranty 
deed. 

That  on  the day  of ,  18—,  the  plaintiff  tendered 

to  the  said  C.  D.  said  purchase-money,  and  demanded  a  deed 
for  said  real  estate,  but  he  failed  and  refused  and  still  refuses 
to  make  said  deed,  whereby  the  plaintiff  is  damaged  in  the 
sum  of dollars,  which  is  due  and  unpaid. 


§  384.]  BONDS.  357 

Sec.  384^.  Answers  and  defenses  to  actions  on  bonds. — 

A  bond  is  not  invalidated  by  an  alteration  made  by  consent 
of  the  parties;'  nor  b}^  the  omission  of  the  name  of  one  of 
the  sureties  in  the  body  of  the  instrument  ;2  nor  b}"-  failure  to 
fill  blanks  in  a  printed  form  unless  material,^  as  the  time  has 
gone  b^'  when  courts  will  listen  to  trivial  and  verbal  inaccu- 
racies in  solemn  instruments.*  It  is  held,  however,  that  an 
entire  blank,  with  signatures  and  seals,  even  with  authority  to 
fill  up,  is  void  ;  ^  and  where  the  word  "  dollars  "  is  omitted  in  a 
bond,  an  action  cannot  be  maintained  thereon  by  averring  that 
it  meant  so  many  dollars.^  A  bond  executed  in  blank  as  to 
the  penalty,  which  is  presented  to  and  approved  by  the  court 
in  the  absence  of  the  sureties,  and  the  blank  is  filled  without 
their  consent,  is  void  unless  there  be  an  express  authority  to 
insert  the  same.^ 

It  was  a  rule  at  common  law,  and  it  has  so  been  held  in 
Ohio  and  other  states,  that  upon  general  principles  the  want 
of  consideration  could  not  be  pleaded  as  a  defense  to  an  action 
upon  a  bond,  and  that  fraud  could  not  be  urged  as  a  defense, 
except  to  the  execution  of  the  instrument.^  But  it  was  after- 
wards provided  by  statute  ^  that  failure  of  consideration  in 
a  sealed  instrument  could  be  set  up  under  which  a  fraudulent 
consideration  could  be  shown,  which  is,  in  fact,  failure  of 
consideration.'"  Sureties  upon  the  bond  of  a  treasurer  of  a 
corporation  cannot  urge  as  a  defense  that  the  funds  were  ac- 
quired by  an  ultra  vires  transaction ; "  nor  can  a  surety  set  up 
a  defense  that  the  obligee  had  agreed  to  cancel  the  same  in 
consideration  of  certain  acts  to  be  done  by  the  principal, 
without  alleging  performance  or  an  offer  to  perform  such 

1  Spencer    v.   Buchanan,   W.   583;     John.  177;   13  John.  430;   8  Wend. 
Tiernan  V.  Feuimore,  17  O.  545.  615;     9    Cowen,    307;     McCarty    v. 

2  State  V.  Boring,  15  O.  507;   Fam-    Beach,  10  Cal.  461;  2  Mass.  159.    See 


nienler  v.  Anderson,  15  O.  S.  478 
McLain  v.  Simington,  37  O.  S.  484 
Partridge    v.    Jones,   38  O.   S.   375 


Home  Ins.  Co.  v.  Watson,  59  N.  Y. 
390. 
9  Swan,  685. 
Ahrend  v.  Ordoins,  125  Mass.  50.  lOGreathouse  v.  Dunlap,  3  McLean, 

3  Bank  v.  Bartlet,  W.  741.  306  (1843).     And  such  a  defense  can 

4  Knisely  v,  Shenberger,  7  Watts,     be  made  under  the  statute  as  it  now 
193.  exists.     R  S.,  sec.  5071.     See  Judy  v. 

SAyres  v.  Harness,  1  O.  368.  Louderman,  48  O.  S.  562. 

6  Spencer  v.  Buchanan.  W.  583.  "  Juegling  v.  Arbeiter  Bund,  4  W. 

"State  V.  Boring,  15  O,  507.  L.  B.  463. 

8  Reynolds  v.  Rogers.  5  O.  169;  2 


358  BONDS.  L§  384. 

acts ;  ^  nor  can  it  be  shown  in  an  action  on  the  bond  of  a 
sheriff  that  goods  levied  upon  do  not  belong  to  the  judgment 
debtor; 2  nor  can  it  be  urged  that  suit  is  brought  for  the 
use  of  the  wrong  parties;*  nor  can  officers  of  a  township  set 
up  as  a  defense  want  of  authority  to  issue  a  bond  where  it 
contains  a  recital  that  it  was  authorized  as  required  by  law.* 
An  answer  which  alleges  that  the  breaches  complained  of 
were  committed  by  the  principal  obligor  with  full  knowledge 
of  the  plaintiff  and  b}'  his  advice  and  consent  is  too  in- 
definite to  justify  a  breach  of  official  duty.'*  An  answer  to 
only  one  breach  of  a  bond  when  two  are  alleged  in  the  peti- 
tion is  not  good,  as  each  allegation  of  a  breach  is  treated  as  a 
distinct  action,^  Where  it  is  alleged  that  defendants  "  duly 
sijrned,  executed  and  delivered  their  certain  bond,"  an  answer 
of  the  surety  to  the  effect  that  a  bond  similar  in  tenor  and 
effect  was  signed  by  the  defendant  does  not  deny  its  execu- 
tion, and  hence  it  cannot  be  shown  that  the  bond  was  not 
filled  out  and  sealed  when  the  defendants  subscribed  their 
names  thereto.'  A  defense  that  an  alleged  breach  was  not 
coraraitted  as  agent  cannot  be  made  to  an  action  on  the  bond 
of  an  insurance  agent  where  the  breach  alleged  is  failure  to 
pay  over  moneys  received  by  virtue  of  his  appointment ;  but 
the  answer  must  contain  such  a  statement  of  facts  as  will  show 
whether  or  not  the  acts  were  outside  the  agenc}^^  Where 
the  defense  is  that  the  signatures  of  bondsmen  were  procured 
by  misrepresentation,  the  answer  should  contain  an  allegation 
to  that  effect  before  proof  thereof  can  be  admitted.^     It  is  a 

1  Kempshall  v.  East,  127  Ind.  320 ;     ficient  as  to  one  of  the  breaches,  will 
S.  C,  26  N.  E.  Rep.  837.  not  be  good  (State  v.  Roche,  94  Ind. 

2  People  V.  Reeder,  25  N.  Y.  302.  372 ;  Mustard  v.  Hopps,  39  Ind.  324) ; 

3  Greser  v.  People,  36  111.  App.  415.     and  where  there  is  but  one  condition 
*  Hudson  V.  Winslow,  35  N.  J.  L.     in  a  bond,  and  hence  only  one  breach, 

437.  if  several  breaches  be  assigned,  the 

8  State  V.  Daugherty,  32  Ind  350.  remedy  is  by  motion  to  strike  out 

6  People  V.  McClellan,  137  111.  352;  and  not  by  demu'-rer.    Boden  v.  Dill, 

27  N.  E.  Rep.  181  (1891).    Each  breach  58  Ind.  273. 

assigned    in    an    action   on   a  bond  '  Insurance  Co.  v,  Bauer,  11  N.  Y. 

being  a  separate  paragraph,  an  an-  S.  372. 

swer  in  bar  of  the  whole  action,  or  s  Insurance  Co.  v.  Baker,  34  W.  Va. 

a  demurrer  to  the  whole  complaint  667 ;  s.  c,  12  S.  E.  Rep.  834. 

(Colburn  v.  Arnold,  47  Ind.  310 ;  Ren  »  Foley  v.  Schiedeniantel,  17  N.  Y. 

V.  Olden,  24  Ind.  56),  which  is  not  suf-  S.  603. 


§  385.]  BONj>s.  359 

good  defense  by  sureties  upon  the  bond  of  an  agent  to  show 
that  at  the  time  the  sureties  executed  the  bond  the  pledgee 
or  person  to  whom  the  bond  is  payable,  in  order  to  induce 
them  to  sign  the  bond,  withheld  information  in  his  possession 
to  the  effect  that  the  agent  was  then  in  default.^  Under  the 
plea  of  non  est  factum  it  cannot  be  shown  that  the  bond  was 
delivered  to  the  principal  obligor  upon  condition  that  it  was 
not  to  be  in  force  until  another  surety  signed  it,  and  that 
the  bond  was  delivered  without  the  procurement  of  such  ad- 
ditional surety.  Such  a  defense  must  be  specially  pleaded.^ 
But  where  a  bond  is  regular  on  its  face,  apparently  executed 
by  all  whose  names  appear  therein,  and  was  actually  delivered 
to  the  principal  without  any  stipulation,  reservation  or  con- 
dition, it  cannot  be  avoided  upon  the  ground  that  it  was 
signed  upon  the  condition  that  it  should  not  be  delivered 
until  he  had  procured  the  signature  of  another.  The  question 
of  the  execution  of  the  bond  may  be  put  in  issue  by  pleading 
non  est  factum  generally;  but  in  order  to  separate  the  law 
from  the  facts,  and  to  show  any  special  ground  why  it  is 
not  the  deed  of  the  defendant,  such  facts  must  be  specially 
pleaded.3  A  defense  to  an  action  on  a  bond  that  the  plaintiff 
had  accepted  certain  notes  in  full  settlement  of  all  claims  is 
not  inconsistent  with  the  plea  of  non  est  factum,  and  is  there- 
fore good.*  But  a  defense  that  the  sureties  are  relieved  by 
reason  of  wilful  concealment  by  the  plaintiff  of  certain  facts 
is  inconsistent  with  the  plea  of  non  est  factum.^ 

Sec.  385.  Answer  of  surety  to  suit  on  administration 
bond  claiming  equitable  set-off  against  claim  of  distributee. 

First  defense:  This  defendant  says  he  denies  that  at  the  set- 
tlement of  the  accounts  of  A.  P.,  as  administrator  of  the  es- 
tate of  A.  K.  C,  deceased,  by  the  probate  court  of  said  county, 

on  the  — —  day  of ,  18—  the  said  court  found  the  sum 

of  $- in  his  hands,  and  adjudged  that  the  same  should  be 

by  him  distributed  according  to  law,  as  stated  in  the  petition 

1  Dinsmore  v.  Tidball,  34  O.  S.  411 ;  2  Am.  Button  Hole,  etc.  Co.  v.  Bur- 
Bank  V.  Owen,  101  Mo,  558;  Fire  Ins.  black,  35  W.  Va.  647. 
Co.  V.  Thompson,  68  Cal.  208 ;  ,Sooy  3  Am.  Button  Hole,  etc.  Co.  v.  Bur- 
V.  State,  39   N.  J.  L.  142;  Frauklin  black,  sw^jra. 

Bank  V.  Stevens,  39  Me.  532;  Wayne  <  Accident   Ins.    Co.    v.   Baker,   34 

V.  Bank,  52  Pa.  St  343.  W.  Va.  667. 

5  Accident  Ins.  Co.  v.  Baker,  supra. 


360  uoNDS.  [§  386. 

of  the  plaintiff,  but  says  that  on  said •  day  of ,  18 — , 

the  said  court  made  an  order  of  which  the  followingis  a  copy: 
"A.  P.,  administrator  of  the  estate  f  iV.  R.  C,  deceased, 
having  filed  herein  his  third  and  final  account,  duly  verified 
by  his  oath,  and  it  having  been  duly  advertised  and  now  come 
on  for  hearing,  upon  careful  examination  the  same  is  found 
correct  and  balanced ;  said  account  is  now  approved,  confirmed 
and  ordered  to  be  recorded;"  which  said  order  was  duly  en- 
tered on  the  journal  of  said  court,  and  was  not  then,  nor  within 
eight  months  thereafter,  excepted  to  or  appealed  from  by 
plaintiff  or  other  person. 

Second  defense:  For  a  second  defense  defendant  says  that 
N.  C,  now  deceased,  was  a  co-obligor  in  the  bond,  a  copy  of 
which  IS  contained  in  the  ])etition  of  plaintiff,  and  that  said 
A.  P.  was  administrator  on  her  estate,  as  well  as  upon  the 
estate  of  said  A.  P.  C,  deceased;  that  the  said  plaintiff  is  a 
son  of  said  A.  P.  C.  and  N.  C. ;  that  said  P.,  ostensibly  as  ad- 
ministrator of  jST.  C,  deceased,  paid  to  said  plaintiff,  through 
G.  D.  M.,  Esq.,  his  attorney,  the  sura  of  $ ,  of  moneys  col- 
lected by  said  M.  in  the  case  of  A.  P.,  administrator  of  the 
estate  of  A,  P.  C,  deceased,  against  W.  M.  S.,  lately  pending 

in  the  court  of  common  pleas  of  said county,  which  said 

sum  was  part  of  the  assets  of  the  estate  of  said  A.  ii.  C,  which 
came  into  the  hands  of  said  P.  as  administrator  of  his  estate; 
that  the  said  sum  was  paid  to  said  plaintiff  some  time  in  the 
year  18 — ,  and  he  denies  that  there  is  due  to  the  plaintiff  the 

said  sura  of  $ ,  with  interest,  as  claimed  in  the  petition  of 

plaintiff. 

Note. —  From  Fisher  v.  Cassidy,  49  O.  S.  421.  A  surety  against  whom  suit 
is  brought  on  an  administrator's  bond  may  have  an  equitable  right  of  set-off, 
as  against  the  heirs  of  a  co-surety  wliose  estate  has  been  settled  and  the 
money  distributed  to  such  heirs,  of  the  amount  wliich  such  heirs  received 
from  the  estate  of  such  co-surety.  Fisher  v.  Cassidv,  supra;  Camp  v.  Bost- 
wick,  20  O.  S.  337.  See  Case  v.  Cassidy,  72  N.  Y.  133;  McConnell  v.  Scott, 
15  O.  401. 

Sec.  386.  Answer  to  action  on  appeal  bond. — 

Defendants  S.  B.,  M.  E.  M.,  executor  of  the  estate  of  S.  W.  M., 
and  H.  G.  M.,  now  come,  and  for  answer  say  that  they  admit 
the  execution  of  the  bond  in  the  petition  stated,  the  recovery 
of  judgment  by  H.  and  wife  for  costs  in  the  action  named  in 
said  bond,  the  issuing  of  execution  to  collect  the  costs,  and  the 
return  thereof  "  no  money  made ; "  but  they  deny  expressly  that 
the  amount  of  costs  recovered  is  truly  stated  in  the  petition, 
and  deny  that  the  judgment  for  costs  in  favor  of  said  plaint- 
iffs H.  and  wife,  in  said  action,  exceeded  the  sum  of  $ -, 

and  they  deny  each  and  every  other  fact  stated  in  said  peti- 
tion except  such  as  are  hereinafter  expressly  admitted. 


CHAPTER  24. 


BREACH  OF  PROMISE  OF  MARRIAGE. 


Sec.  387.  Petition     in    actions      for 
breach  of  promise. 

388.  Petition  for  breac!i  of  prom- 

ise. 

389.  Petition  for  not  marrying  in 

a  reasonable  time. 

390.  Petition    where    defendant 

has  married  another. 

391.  Breach    of    promise  —  The 

answer. 


Sec.  392.  Answer  of  refusal  to  marry. 

393.  Answer  of  bad  character  of 

plaintiff. 

394.  Answer    claiming    miscon- 

duct of  plaintiff. 
895.  Answer    setting  up  condi- 
tions imposed  by  plaintiff 
not    a    part    of    origmal 
promise. 


Sec.  387.  Petition  in  actions  for  breach  of  promise. —  A 

breach  of  promise  of  marriage  is  regarded  as  a  tort/  but,  un- 
like other  cases  of  tort,  it  does  not  survive  the  promisor  unless 
there  has  been  some  special  damage.^  A  mutual  contract  of 
marriage  need  not  be  in  writing  nor  in  any  particular  form.' 
There  are  some  courts  which  have  held  that  an  oral  contract 
of  marriage  not  to  be  performed  in  one  year  is  void,*  but  this 
rule  seems  hardly  applicable  to  such  contracts;  and,  especially 
where  parties  understand  that  the  promise  is  not  to,  be  per- 
formed in  one  year,  it  is  not  within  the  statute  of  frauds.* 
Where  no  time  is  fixed  for  the  performance  of  the  marriage 
ceremony,  the  law  presumes  that  it  will  be  in  a  reasonable 
time ;  ^  and  there  can  be  no  default  in  such  case  until  an  offer 
is  made  to  fix  a  time  and  place  to  consummate  the  agreement ; 
nor  can  an  action  be  maintained  unless  the  plaintiff  pleads 


1  Glasscock  v.  Shell,  57  Tex.  215. 

2  Grubb  V.  Suit,  32  Gratt  208 ;  Shu- 
ler  V.  Millsap,  71  N.  C.  297;  Wade  v. 
Kalbfleisch,  58  N.  Y.  282:  Lattimore 
V.  Simons,  12  S.  &  R.  188;  Hayden 
V.  Vreeland,  18  Am.  Rep.  123. 

» Kelley  v.  Riley,  106  Mass.  339 ;  Lin- 
scott  V.  Mclntire,  15  Me.  201 ;  Homan 
V.  Earl,  58  N.  Y.  267;  Cole  v.  HoUi- 
day,  4  Mo.  A  pp.  94. 


4  Nichols  V.  Weaver,  7  Kan,  373; 
Parris  v.  Strong,  51  Ind,  339 ;  Derby 
V.  Phelps,  2N.  H.  515. 

5  Lawrence  v.  Cook,  56  Me.  187; 
Wiggins  V.  Kiezer,  6  Ind.  252. 

6  Carver  v.  Smith,  15  M.  &  W.  189; 
Adams  v.  Byerly,  123  Ind.  368;  Black- 
burn V.  Mann,  85  111.  222;  Cole  v. 
Holliday,  4  Mo.  App.  94. 


362  BKEACH    OF    PKOMISE    OF    MARRIAGE.  [§  387. 

and  proves  an  offer,  and  failure  of  the  defendant  to  comply- 
therewith.*  It  is  not  consistent  with  public  policy  to  compel 
a  contract  of  marriage  to  be  specifically  perforraed,^  so  the 
wounded  party  is  confined  to  a  remedy  in  damages.'  Such 
an  action  will  lie  on  a  promise  of  marriage  against  one  who 
was  married  at  the  time  of  making  it,*  and  will  accrue 
at  once  when  there  is  any  conduct  on  the  part  of  the  de- 
fendant amounting  to  a  repudiation,"  although  the  time  set 
for  the  marriage  is  still  in  the  future.®  As  the  law  presumes 
that  all  contracts  are  made  by  persons  competent  to  contract, 
it  is  not  necessary  to  aver  the  age  of  either  party.^  The  same 
rule  is  applicable  to  marriage  contracts  as  to  others  where 
one  of  the  parties  is  of  full  age  and  the  other  an  infant — the 
former  being  bound,  and  the  latter  having  the  right  to  rescind 
it.^  Where  a  defendant  pleads  infancy,  the  plaintiff  may  be 
allowed  to  amend  by  stating  other  promises,  and  a  ratifica- 
tion of  the  first  one,  after  the  defendant  becomes  of  age.'' 
Where  the  petition  alleges  that  the  defendant  has  married 
another  person,  or  where  there  is  a  mutual  promise  to  marry 
on  a  certain  day,  it  need  not  contain  an  averment  that  a  de- 
mand or  request  was  made  upon  the  defendant  to  fulfill  his 
promise ; "  an  allegation  of  readiness  on  the  part  of  the  plaint- 
iff to  fulfill  the  marriage  promise  is,  however,  material."  Alle- 
gations that  a  promise  was  made,  that  it  was  brolien,  that  an 
advantageous  matrimonial  connection  was  lost,  that  affections 
have  be'en  disregarded  and  blighted,  feelings  lacerated,  and 
spirits  wounded,  are  sufficient  to  authorize  a  recovery.*^  Where 

iFible  V.  Coplinger,  13  B.  Mon.  464;  7  Glasscock  v.  Shpll,  57  Tex.  215; 

Wagenseller  v.  Simmons,  97  Pa.  St.  Jones  v.  Layman,    123  lad.  569 ;  24 

465.  N.  E.  Rep.  363. 

2  Cheney  v.  Arnold,  15  N.  Y.  345,  SHunt  v.  Peake,  5  Cow.  475;  Cau- 

3  Wightman  v.  Coates,  15  Mass.  1.  non  v.   Alsbury,  1  A.   K.  Marsh.  76 ; 
4 Stevenson  v,  Pettis.  12  Phila.  468;  Willard  v.  Stone,  7  Cow.  22. 

Wild  V.  Harris,  17  C.  B.  99;  Kelley  v.  sSchreckengast  v.    Ealy,    16  Neb. 

Riley,   106  Mass.   339 ;  S.   G,  80  Am.  510. 

Rep.  336 ;  Prescott  v.  Guyler,  32  III.  i"  Hunter  v.  Hatfield.  68  Ind.  416 ; 

312.  Graham  v.   Martin.  64  Ind.  567 ;  Ste- 

6  Adams  v.  Byerly.  123  Ind.  368;  vens  v.  Pettis,  12  Phila.  468;  Short 

S.  c.  24  N.  E.  Rep.  130.  v.  Stone,  55  E.  C,  L.  358;  Caines  v. 

6  Burtis  V.  Thompson,  42  N.  Y.  246.  Smith,  16  K  &  W.  189. 

As  to  other  contracts  see  60  N.  Y.  n  Graham  v.  Martin,  supra. 

448;  82  N.  Y.  436;  29  Mich.  478.  12  Daggett  v,  Wallace.  75  Tex.  352. 


§§  388,  389.]   BREACH  OF  PROMISE  OF  MARRIAGE.  303 

a  promise  of  marriage  has  been  made  to  be  fulfilled  in  the 
future,  and  a  new  one  is  made  u|)on  illicit  intercourse  that  if 
pregnane}'  results  the  contract  shall  be  performed  at  once,  the 
latter  promise  does  not  supersede  the  original  one.^  It  is  es- 
sential that  the  facts  relied  upon  as  causing  damages  be  fully 
set  forth  in  the  pleading,^  and  damages  for  loss  of  health  can- 
not be  allowed  unless  specially  pleaded.^  Where  false  repre- 
sentations are  relied  upon  by  the  plaintiff,  it  is  necessary  to 
aver  that  the  defendant  knew  the  same  to  be  faise.^ 
Sec.  388.  Petition  for  breach  of  promise. — 
The  plaintiff  complains  of  the  defendant  and  says  that  said 
defendant  entered  into  a  contract  with  her,  in  the  month  of 

,  18 — ,  by  which  it  was  agreed  by  and  between  them 

that  they  would  get  married  in  the  month  of followino-; 

and  she  avers  that  she  made  all  the  necessary  arrangemen'ts 
and  preparations  to  consummate  said  contract,  and  was  ready 
and  willing  at  the  time  fixed  aforesaid  to  fulfill  the  same;  but 
she  avers  that  said  defendant  wholly  failed  to  fulfill  his  con- 
tract, to  the  great  distress,  mortification  and  disgrace  of  plaint- 
iff; wherefore  she  demands  judgment  for dollars. 

Note.—  See  Gates  v.  McKinney,  17  Am.  Rep.  768.  Punitive  damages  may 
be  allowed.  Johnson  v.  Jenkins.  24  N.  Y.  2.52;  Thorn  v.  Knapp.  42  N.  Y. 
474;  s.  c,  1  Am.  Rep.  561;  Simpson  v.  Black,  27  Wis.  206;  Dryden  v. 
Knowles,  33  Ind.  148. 

See.  389,  Petition  for  not  marrying  in  a  reasonable  time. 

[Formal  parts.'] 

Plaintiff  alleges  that  at  the  request  of  the  defendant,  she 

and  said  defendant  did,  on  the day  of ,  18—,  enter 

into  a  mutual  promise  and  agreement  to  marry  each  other, 
but  that  no  definite  time  was  fixed  for  the  consummation  of 
said  marriage  contract. 

Plaintiff  has  since  remained  unmarried,  relying  upon  the 
promise  so  made  by  the  defendant,  and  has  always  since  said 

date  been  ready  to  marry  defendant,  and  on  the day  of 

,  18 — ,  requested  said  defendant  to  carry  out  his  contract, 

which  he  has  wholly  failed  to  do,  although  a  reasonable  time 
has  elapsed  since  the  request  was  made  b}''  plaintiff. 

\_Praye)'.'\ 

NoTK —  Plaintiff  is  entitled  to  such  damages  as  will  place  her  in  as  jcood 
pecuniary  condition  as  she  would  have  been  had  the  contract  been  fulfilled. 
Cooper  V.  West,  3  W.  L.  B.  430.     Evidence  as   to  preparation  by  procuring 

1  Kurtz  V.  Frank,  40  Am.  Rep.  278;         3  Bedell  v.  Powell,  13  Barb.  183. 
Clark  V.  Pendleton,  20  Conn.  495.  *  Blattmacher  v.  Sail,  7  Abb.  Pr.  409. 

2  Glasscock  v.  Shell,  57  Tex.  215. 


364  BREACH    OF    PROMISE    OF    MARRIAGE.      [§§  390,  391, 

beddinjj  and  declarations  explanatory  thereof  shows  acceptance  of  promise. 
Wetmore  v.  Mell.  1  O.  S.  26.  Evidence  of  seduction  may  be  received  on  the 
question  of  damap:es.  Matthews  v.  Cribbett  11  O.  S.  330;  Raymond  v. 
Saucer,  84  Ind.  3;  Kelley  v.  Riley,  106  Mass.  339,  Giese  v.  Schultz.  53  Wis. 
462;  Daggett  v.  Wallace,  75  Tex,  355;  Sherman  v.  Rowson,  102  Mass.  399. 
To  enhance  damages  of  plaintiff,  evidence  is  admissible  that  she  announced 
her  engagement  to  her  friends  and  invited  them  to  her  wedding.  47  Cal. 
194 

Sec.  390.  Petition  where  defendant  has  married  another. 

The  plaintiff  states  that  on  the day  of ,  18—,  she 

being  then  unmarried,  at  the  request  of  the  defendant,  prom- 
ised to  marry  him,  and  the  said  defendant  at  the  same 
time  promised  to  marry  her.  That  the  plaintiff,  relying  upon 
said  promise  of  the  defendant,  has  remained  sole  and  un- 
married ;  and  on  the day  of ,  18—,  the  said  defend- 
ant postponed  the  time  of  the  marriage  ceremony  until , 

at  which  time  the  said  defendant,  under  some  pretext,  post- 
poned   the   performance   of    the    marriage    ceremony   from 

time  to  time,  until  some  time  in  the  month  of ;  and  when 

the  time  came  the  said  defemhmt  refused  to  marry  the  said 
plaintiff  at  thtit  time;  and  afterwards,  the  said  defendant, 
not  regarding  his  said  promise  and  undertaking,  but  contriv- 
ing and  intending  to  deceive  and  injure  the  said  plaintiff  in 
this  behalf,  after  the  making  of  his  said  promise,  to  wit,  at 
the  several  times  aforesaid,  at  the  county  aforesaid,  wrong- 
fully and  in  violation  of  his  said  promise  to  this  plaintiff,  said 

defendant  on  the day  of ,  18 — ,  married  one  M.  B., 

by  which  the  said  plaintiff  has  sustained  damage  to  the  amount 
of dollars,  for  which  she  asks  judgment. 

See.  391.  Breach  of  promise  —  The  answer.—  The  defend- 
ant may  plead  infancy ,i  or  that  the  plaintiff  failed  to  carry  out 
some  condition  of  the  promise,'^  or  that  the  plaintiff  has  expressly 
released  him;^  and  lewd  and  improper  conduct  on  the  part  of 
the  plaintiff  may  be  shown  under  a  general  denial.^  An  at- 
tempt by  a  defendant  to  prove  unchaste  character  before  the 
breach,  unless  made  with  reasonable  hope  of  establishing  the 
same,  may  be  taken  into  consideration  on  the  question  of 
damages  to  the  plaintiff.*     The  fact  that  a  plaintiff  before  the 

1  Rush  V.  Wick,  31  O.  S.  521 ;  Can-  285 ;  Thorn  v.  Mack,  42  N.  Y.  484 ; 

non  v,  Alsbury,  1  A.  K.  Marsh.  56 ;  Southard  v.  Rexford,  6  Cow.  254. 
Wiilard    v.    Cooper,   5    Sneed,   659;        •'^Duvali   v.  Fuhrman,  3  O.  C.  C. 

Hunt  V,  Peake,  15  Am.  Dec.  475,  305;   White  v,  Thomas,  12  O.  S.  312; 

2Gring  V,  Lerch,  112  Pa.  St.  244.  Denslow   v.   Van   Horn,  16  la,   476- 

3Shellenbarger   v.   Blake,  67   Ind.  Haymond  v.  Saucer.  84  Ind.  39;  Jones 

75;  Grant  V,  Willy,  101  Mmss.  353.  v.  Layman,  123  Ind.  569;  Powers  v. 

*Kniflfer  v.   McCoimJI,  30   N.   Y.  Wh.^atly,  45  Cal.  113;  Fidler  v.  Mc- 


§  392.]  BKKACH    OF    PROMISE    OF    MARKIAGE.  365 

promise  gave  birth  to  a  cbild  will  not  bar  the  action  if  the  de- 
fendant had  knowledge  thereof,  but  it  may  be  considered  in 
mitigation  of  damages ;  ^  nor  can  a  defendant  urge  as  a  de- 
fense that  the  plaintiff  had  previously  contracted  to  marry 
another  person  j^  or  that  he  discovered  that  he  could  not  be 
happy  with  her ;  ^  or  after  a  refusal  that  he  renewed  his  offer ;  * 
or  that  he  did  not  make  the  promise  in  good  faith ;  ^  or  that 
he  was  married  at  the  time  of  the  promise,  if  the  plaintiff  was 
ignorant  of  the  fact.*  And  if  his  repudiation  of  the  contract  be 
based  upon  the  fact  of  his  having  a  venereal  disease,  he  will 
nevertheless  be  answerable  in  damages  if  the  same  be  con- 
tracted subsequently  to  his  promise  of  marriage.'^  A  man  is 
not  excused  from  fulfilling  his  marriage  contract,  even  though 
unable  to  comply  with  all  obligations  of  marriage  by  reason 
of  ill  health,  as  he  may  nevertheless  secure  to  his  wife  a  social 
position  and  endow  her  with  a  wife's  interest  in  his  estate." 
Mitigating  circumstances  may  be  proved  even  though  not 
pleaded ;  ^  and  under  a  general  denial,  evidence  as  to  habits 
of  intoxication  on  the  part  of  the  plaintiff  may  be  shown  by 
way  of  mitigation,  but  not  as  a  defense;'"  and  so  with  evi- 
dence as  to  the  ill  health  of  plaintiff."  An  action  will  not  lie 
in  Ohio  for  a  breach  of  promise  of  a  contract  of  marriage 
where  the  parties  are  related  as  first  cousins.*^ 

Sec.  392.  Answer  of  refusal  to  marry. — 

The  defendant  for  his  answer  to  plaintiff's  petition  denies 

Kinley,  21  111.  308;  Thorn  v.  Knapp,  SKelley  v.  Riley,  106  Mass.  339; 

42  N.  Y.  474;  Reed  v.  Clark,  47  Cal.  S.  C,  80  Am.  Rep.  336. 

194 ;  Leavitt  v.  Cutler,  37  Wis,  46.  7  Allen  v.  Baker,  86  N.  C.  91 ;  S.  G, 

Contra,  Hunter  v.  Hatfield,  68  Ind.  41  Am.  Rep.  444;  Sprigg  v.  Craig,  51 

416.  III.  288. 

iDenslow  v.  Van  Horn,  16  la.  476;  8  Hall  v.  Wright.  96  E.  C.  L.  746; 

Irving  V.  Greenwood,  1   C.  &  P.  350 ;  Boast  v.  Firth,  L.  R.  4  C.  P.  8. 

Woodward  v.  Bellamy,  2  Root,  354 ;  »  Tompkins  v.   Wadley,  3  T.  &  G 

Sprigg  V.  Craig,  51  111.  288.  424. 

2  Roper  V.  Clay,  18  Mo.  358.  lOButtman  v  McAuley,  5  Abb.  Pr. 

sCoolidge  v.  Neat,  129  Mass.  146;  (N.  S.)  29;  s.  C,  1  Abb.  Pr.  288.     See 

Sheehan  v.  Barry,  27  Mich.  217.  Palmer  v.   Andrews,  7  Wend.    142; 

<  Kurtz  V.  Frank,  76  Ind.  594 ;  s.  c,  Willard  v.  Stone,  7  Cow.  22 ;  Espy  v. 

40  Am.  Rep.  275;  HoUiday  v.  Grif-  Jones,  37  Ala.  379;  Denslow  v.  Van 

fith,  32   la.  409;  Southard   v.    R-x-  Horn,  16  la.  476. 

ford,  6  Cow.  254;  Kelly  v.  Renfro,  "Walker  v.  Johnson,  33  N.  E.  Rep. 

9  Ala.  328.  267  (Ind.,  1893). 

5  Prescott  V.  Geyle,  82  111.  312.  12  Reed  v.  Reed,  49  O.  S.  654. 


366  BREACH    OF    PROMISE    OF    MARRIAGE.      [§§  393-395. 

that  he  has  refused  to  marry  said  plaintifif,  but  on  the  contrary 

avers  and  alleges  that  on  "the day  of ,  18 — ,  and  at 

all  times  since,  he  has  been  and  is  now  ready  and  willing  to 
marry  said  plaintiff,  etc. 

Sec.  393.  Answer  of  bad  character  of  plaintiff. — 

Defendant  says  that  at  the  time  he  made  the  agreement  to 
marry  the  plaintiff  she  was  known  by  her  acquaintances  gen- 
erally to  be  unchaste,  of  all  which  'defendant  was  entirely 
ignorant.  That  as  soon  as  he  learned  of  her  character  and 
reputation  he  refused  to  marry  her. 

Note. —  Under  an  answer  denj-ing  the  promise  the  defendant  may  show 
in  mitigation  of  damages  that  plaintiff  was  delivered  of  a  bastard  child. 
White  V.  Thomas,  12  O.  S.  312. 

Sec.  394.  Answer  claiming  misconduct  of  plaintiff. — 

Defendant  says  that  since  the  date  of  the  promise  of  mar- 
riage set  forth  in  plaintiff's  petition,  the  plaintiff  did  on  the 

day  of ,  IS — ,  have  sexual  intercourse  with  one  A.  B. 

That  when  defendant  learned  of  the  fact  he  refused  to  marry 
plaintiff. 

Sec.  395.  Answer  setting  up  conditions  imposed  by  plaint- 
iff not  a  part  of  original  promise. — 

Defendant  for  answer  to  the  petition  says  that  he  does  not 
deny,  but  admits  that  he  did  promise  to  marry  the  plaintiff 

about  the  month  of  ,  IS — ;  that  he  did  not  refuse  to 

marry  the  plaintiff,  but  was  ready  and  willing  and  before  said 
action  was  commenced  offered  to  fulfill  said  promise  and 
tendered  the  performance  thereof,  but  the  plamtiff  unreason- 
ably refused  to  fulfill  said  promise  on  her  part;  that  the 
plaintiff"  refused  to  fulfill  and  consummate  said  promise  on  her 
part  except  on  terms  and  conditions  which  were  unreasonable 
and  no  part  of  the  original  agreement,  and  which  could  not 
fairly  be  required  of  or  complied  with  by  the  defendant;  that 
the  defendant  provided-a  suitable  house  and  place  of  residence 
and  the  plaintiff  refused  to  go  there  to  reside  [or  other  condi- 
tions], and  that  the  plaintiff  was  otherwise  unreasonable  in 
the  interposition  of  claims  and  demands  which  were  not  a 
part  of  the  original  promise,  and  required  that  the  defendant 
should  comply  with  them  as  conditions  of  her  fulfillment  of 
her  promise  or  agreement;  and  so  the  defendant  says  that  he 
was  alwavs  ready  and  willing  to  fulfill  the  promise  made  by 
him  but  the  plaintiff  was  unwilling  to  fulfill  the  promise  made 
by  her. 

Note.—  From  Hook  v.  George.  108  Mass.  324.  This  answer  really  amounts 
to  a  denial  and  does  not  shift  the  burden  of  proof. 


CHAPTEK  25. 


BUILDING  AND  LOAN  ASSOCIATIONS. 


Sec.  396.  Action  3  to  f orecl  ose  buil  d  i  u  g 
association  mortgages  — 
Pleading. 


Sec.  397.  Petition  to  foreclose  build- 
ing association  mortgage. 


Sec.  396.  Actions  to  forclose  building  association  mort- 
gages—  Pleading. —  It  is  necessary,  in  actions  by  or  against 
building  associations,  to  allege  their  corporate  character  as  in 
the  case  of  other  corporations.  Kothing  further  than  a  state- 
ment of  the  corporate  name  need  be  alleged.  A  contract  is 
not  void  because  the  corporation  with  which  it  is  made  is  mis" 
named ;  and  where  a  corporation  sues  by  a  wrong  name  the 
pleading  may  be  amended.'  So  where  a  bond  has  been  exe- 
cuted to  a  corporation  by  a  name  varying  from  its  true  one, 
the  corporation  may  nevertheless  sue  by  its  corporate  name.^ 
Where,  in  foreclosing  a  building  and  loan  association  mort- 
gage, a  judgment  is  desired  for  money  paid  by  it  for  taxes,  the 
fact  of  payment  of  the  taxes  by  the  association  should  be  fully 
set  forth,  and  judgment  prayed  therefor,  although  if  judgment 
■be  rendered  without  such  averment  it  will  not  be  prejudicial 
error.^  In  an  action  to  foreclose  a  mortgage  to  a  building  as- 
sociation to  secure  a  bond,  an  averment  that  "  said  sum  of 


dollars  with  interest  thereon  remains  unpaid"  is  a  sufficient 
allegation  to  obtain  a  judgment;*  and  where  there  is  a  pro- 
vision in  a  mortgage  to  the  eflfect  that  if  default  be  made  in 
the  monthly  payments  for  a  space  of  ^ix  months  after  they 
become  due,  a  petition  to  foreclose,  which  does  not  allege  or 
show  that  there  has  been  default  in  any  one  monthly  pay- 
ment for  that  period,  is  fatally  defective.*  If  a  bond  and 
mortgage  specifies  a  certain  rate  of  interest,  together  with  a 

iHoboken  BuildingAss'n  v.  Martin,  *  Swift  v.  B.  &  L.  Ass'n,  83  Pa.  St 

2  Beas.  (N.  J.)  427.  142. 

2McMinn  v.  Reneau,  2  Swan,  94.  » Building  Ass'n  v.  Piatt,  5   Duer, 

■*  Bates  V.  People's,  etc.    Ass'n,   42  675. 
().  S.  655. 


I 


368  BUILDING   AND   LOAN    ASSOCIATIONS.  [§  397. 

mouthly  instalment  on  each  share,  recovery  may  be  had  for 
the  amount  in  arrears  without  deductions  for  a  monthly  in- 
stalment.^ In  computing  or  determining  the  amount  due  on 
a  building  association  mortgage,  interest  will  not  be  allowed 
on  dues,  as  members  are  entitled  to  dividends  and  not  inter- 
est;^ and  after  breach  of  a  condition  in  the  mortgage  the  de- 
cree to  foreclose  should  be  limited  to  the  amount  of  dues,  in- 
terest and  fines  then  due  and  unpaid.'  It  is  held  that  the  rule 
for  ascertaining  the  proper  amount  to  be  recovered  in  an  action 
to  foreclose  a  building  association  mortgage  is  to  ascertain  by 
proof  the  probable  duration  of  the  association,  then  to  esti- 
mate the  aggregate  amount  of  the  bi-weekly  instalments 
payable  during  that  time,  and  from  that  sum  rebate  the  just 
amount  for  interest,  and  add  thereto  the  arrearages  due,  after 
allowing  for  payments  made  to  the  association ;  the  sum  thus 
ascertained  would  be  the  amount  to  which  plaintiff  would  be 
entitled  to  recover,  with  interest  until  paid.* 

Sec.  397.  Petition  to  foreclose  a  building  association 
mortgage. — 

1.  Plaintifif  says  it  is  a  corporation  duly  incorporated  under 

the   laws  of   Ohio,  and  doing  business  in  the  city  of  , 

county  of an'l  state  of  Ohio. 

That  defendant  C.  G.,  on  or  about  the  day  of  , 

18 — ,  borrowed  from  this  plaintiff  the  sum  of  $ ,  and  exe- 
cuted his  bond  therefor  to  this  plaintiff,  a  copy  of  which 
bond  is  as  follows :  [set  forth  a  copy^  or  say:  the  conditions  of 
which  hond  were  in  stihstance,  etc.] 

That  said  defendant  C.  G.,  from  and  after  the  execution 
and  delivery  of  the  aforesaid  bond,  paid  the  monthly  dues,  in- 
terest and  premiums  as  therein  specified  until  and  including 

the  month  of ,  18 — ,  and  that  since  said  month  of 

said  defendant  has  wholly  failed  to  comply  with  the  provis- 
ions and  conditions  in  said  bond  contained.  By  virtue  of  the 
constitution  and  by-laws  of  the  said  association  said  defendant 
C.  G.,  on  his  aforesaid  default  in  the  payment  of  said  monthly 
dues,  interest  and  premiums,  has  been  fined  in  the  sum  of 

cents  for  each  share  so  borrowed,  for  every  month  in 

which  he  was  and  is  in  default;  and  that  there  is  due  and  un- 
paid from  this  defendant  C.  G.  to  this  plaintiff,  on  the  above- 

1  People's  Building  &  Loan  Ass'n  v.  O.  S.  186 ;  Risk  v.  D.  B.  &  L.  S.  Ass'n, 
Fuiey,  47  N.  J.  Eq.  410.  31  O.  S.  517. 

2  AUemania,  etc.  Building  Ass'n  v.  *  McCahan  v.  Columbian  Building 
Mueller,  8  W.  L.  B.  97.  Ass'n,  40  Md.  226,    See  36  Md.  38a 

'Hagerman   v.  M.  &  L.  Ass'n,  25 


§  ?)97.]  BUILDING    AND    LOAN    ASSOCIATIONS.  369 

recited  bond,  the  sum  of  $ ,  with  interest  thereon  at 


from ,  and  a  total  monthly  premium  of  $ ,  together 

with cents  tine  for  each  of  said shares  per  month, 

for  every  month  default  is  made  in  said  payments  from  said 
day  of ,  18 — . 

2.  [  Usual  averments.']  That  to  secure  the  payment  of  the 
bond  aforesaid  in  all  its  terms,  conditions  and  covenants,  the 
said  C.  G.  and  M.  G.,  his  wife,  and  who  released  her  right  of 
dower  in  the  premises  hereinafter  described,  executed  and  de- 
livered unto  this  plaintiff  their  certain  mortgage  deed,  bearing 

date ,  18 — ,  and  thereby  conveyed  to  the  plaintiff  in  fee 

simple  the  following  described  property,  situate,  etc.  [descrip- 
tion of  jproperty.] 

Said  mortgage  deed  was  delivered  to  the  recorder  of 

county,  Ohio,  for  record,  according  to  law,  on  the  day 

of  ,  18 — ,  at  o'clock  —  M.,  and  was  duly  recorded 

in  Mortgage  Record,  vol. . 

Said  mortgage  deed  had  a  condition  therein  written  that  if 
\here  state  the  substance  of  the  conditions  as  in  other  foreclos- 
ures, or  give  a  copy\ 

That  the  said  C.  G.  has  wholly  failed  to  pay  the  dues,  in- 
terest, premium  and  fines  upon  said  loan  of  dollars,  ac- 
cording to  the  conditions  contained  in  said  mortgage  deed, 

hereinbefore  set  forth,  since  the  month  of   ,  by  reason 

whereof  this  mortgage  deed  has  become  absolute. 

There  is  due  plaintiff  from  defendant  the  sum  of  % , 

with  interest  monthly  on  % thereof,  at  per  cent. 

from ,  and  a  total  monthly  premium  of  $ ,  together 

with cents  fine  on  each  of  said  shares  per  month, 

for  every  month  default  is  made  in  said  payments  from  said 
da3^  of ,  18 — . 

Plaintiff  therefore  prays  that  in  default  of  payment  of  the 
amount  now  payable,  or  that  may  become  payable  before 
judgment  herein,  said  mortgage  may  be  foreclosed,  that  said 
premises  be  sold  as  upon  execution  to  satisfy  this  plaintiff's 
mortgage  indebtedness  from  said  defendant,  and  that  out  of 
the  proceeds  arising  from  such  sale  plaintiff's  claim  be  paid, 
and  for  other  proper  relief. 

Note. —  88  O.  L.,  p.  469.     A  person   wlio   has  deposited   even  a  small 
amount  of  money  with  an  association,  when  sued  for  money  loaned  him  is 
estopped  from  denying  that  he  is  the  depositor.     Bates  v.  People's  Ass'n, 
43  O.  S.  655. 
24 


i 


CHAPTER  26. 

COMMON    CARRIERS. 

Sec.  414.  Petition   for  failure  to  re- 
ceive and  carry  goods. 

415.  Petition  against  railroad 
company  for  recovery  of 
illegal  freight  charges. 

416.  Actions  against  carriers 
with  respect  to  carriage 
of  passengers  —  The  peti- 
tion. 

417.  Petition  for  failure  to  re- 
ceive and  carry  passen- 
ger. 

418.  Petition  against  railroad 
company  for  wrongful 
ejection  of  passenger. 

419.  Petition  for  carrying  pas- 
senger past  station. 

420.  Defenses  to  actions  against 
common  carrier. 

421.  Answer  that  goods  were 
lost  by  land  -  slide  — 
Flood  —  Act  of  God. 

423.  Answer  that  liability  was 
limited  by  special  con- 
tract. 

423.  Answer  that  property  was 
stolen  without  defend- 
ant's fault 

424  Answer  that  goods  were 
improperly  packed. 

Sec.  398.  Common  carrier  defined. —  A  common  carrier  is 
defined  as  one  that  undertakes  for  reward  to  carry,  or  cause 
to  be  carried,  goods  for  all  persons  indifferently,  from  one 
place  to  another.^  An  express  company,  although  not  the 
owner  of  the  means  of  conveyance,  is  a  common  carrier.'    A 

1  U.  S.  Express  Co.  V.  Backman,  28  -Id.  An  express  company  is  de- 
O.  S.  144;  Story  on  Bailments,  sec.  fined  by  recent  statute :  "That  any 
443;  2  Redf.  on  Railways,  3,  4,  person  or  persons,  joint-stock  associ- 


Sec.  398. 

Common  carrier  defined. 

399. 

Liability  of  carrier  —  Con- 

sidered generally. 

400. 

The  bill  of  lading. 

401. 

Delivery  by  carrier. 

403. 

Limiting  liability. 

403. 

Connecting  carriers. 

404 

Actions     against     carriers 

relative    to    carriage    of 

goods  —  The  petition. 

405. 

Petition  for  loss  of  goods. 

406. 

Petition  for  failure  to  safely 

carry  goods. 

407. 

Petition  for  failure  to  de- 

liver within  time  agreed^ 

408. 

Petition  for  failure  to  de- 

liver within  a  reasonable 

time. 

409. 

Petition     for    recovery  of 

overcharge. 

410. 

Petition   for  damages    for 

loss  of  baggage. 

411. 

Petition   where    notice    to 

keep  dry  is  disregarded. 

412. 

Petition    for    damages  for 

negligent  breakage. 

413. 

Petition  for  wrongfully  de- 

livering   goods    shipped 

"G  0.  D." 

§  399.] 


COMMON    CARRIERS. 


371 


stage-coach  engaged  in  carrying  parcels  not  belonging  to  its 
passengers,'  and  a  ferryman  occupying  a  position  on  a  line 
of  public  travel,  holding  himself  out  for  general  employment, 
are  also  common  carriers;  -  but  a  person  occasionally  carrying 
goods  for  hire,  not  holding  himself  out  as  such,  will  not  be  re- 
garded as  a  common  carrier,  and  is  therefore  bound  only  to 
ordinary  care  as  a  bailee.^ 

Sec.  399.  Liability  of  carrier  —  Considered  generally. — 
The  liability  of  a  carrier  attaches  immediately  upon  receipt 
of  goods  bv  it,  and  it  is  therefore  liable  for  their  loss  while  in 
its  warehouse  awaiting  transportation.'*  The  common-law 
rule  that  the  liability  of  the  carrier  continues  not  only  until 
the  goods  have  reached  the  place  of  destination,  but  until  the 
person  to  whom  they  are  consigned  has  had  notice  and  a 
reasonable  time  to  take  charge  of  ihe  same,  prevails  in  Ohio 
and  elsewhere.^  But  if  the  consignee  fails  to  call  for  them 
within  a  reasonable  time  after  notice,  the  liability  of  the  car- 
rier is  changed  to  that  of  warehouseman.®  In  obedience  to 
the  inflexible  maxim  of  lex  loei  Gontractas^  as  applicable  to  the 
carriage  of  goods,  the  law  of  the  place  where  the  same  are  to 
be  delivered  governs  the  liability  of  the  carrier."     A  common 


ation  or  corporation,  engaged  in  the 
business  of  conveying  to,  from  or 
through  this  state,  or  any  part  there- 
of, money,  packages,  gold,  silver, 
plate  or  other  articles,  by  express, 
not  including  the  ordinary  lines  for 
transportation  of  merchandise  and 
property  in  tliis  state,  shall  be 
deemed  an  express  company."  91 
O.  L.  237. 

iDvvight  V.  Brewster,  1  Pick.  50- 
Contra,  Sheldon  v.  Robinson,  7  N,  H^ 
157. 

2  Wilson  V.  Hamilton,  4  O.  S.  722. 

3  Sams  V.  Stewart,  20  O.  59. 

4  Railroad  Co.  v.  Barrett,  30  O.  S. 
148. 

5 Railroad  Co.  v.  Hatch,  6  O.  C.  C. 
630  (Hancock  Co.,  1893);  Gaines  v. 
Union  Transfer  Co.,  28  O.  S.  445; 
Hirsch  v.  Steamboat  Quaker  City.  2 
Disn.    144;   4  \V.   L.   M.   99;   Swan's 


Treatise,  371 ;  Railroad  Co.  v.  MclMil- 
lan,  16  Mich.  79 ;  Buckley  v.  Railroad 
Co.,  18  Mich.  121 ;  Feige  v.  Railroad 
Co.,  62  Mich.  1 ;  Moses  v.  Railroad 
Co.,  32  N.  H.  523 ;  16  Kan.  333 ;  Mills 
V.  Railroad  Co.,  45  N.  Y.  622 ;  Hedges 
V.  Railroad  Co.,  49  N.  Y.  223 ;  Sher- 
man v.  Railroad  Co.,  64  N.  Y.  254 ; 
Redfield  on  Carriers,  sec.  108 ;  79  Ala. 
395  ;  38  Vt.  402. 

•>  Railroad  Co.  v.  Hatch,  supni: 
Fenner  v.  Railroad  Co.,  44  N.  Y.  505  ; 
Hirsch  v.  Steamboat  Quaker  City, 
supra. 

^Curtiss  V.  Railroad  Co.,  74  N.  Y. 
116;  Dyke  v.  Railroad  Co.,  45  N.  Y. 
113;  s.  c,  6  Am.  Rep.  43;  Jacobson 
V.  Adams  Exp.  Co.,  1  O.  C.  C.  381 
(Pickaway  Co.,  1885).  affirmed  by 
supreme  court;  Gaultv.  Adams  Exp. 
Co.,  48  Am.  Rep.  746. 


372 


COMMON    CARRIERS. 


[§399, 


carrier  is  not  only  responsible  for  negligence,  but  is  an  insurer 
against  loss  not  occasioned  by  the  act  of  God,  the  public 
enemy,  or  the  fault  of  the  party  suffering  loss.^  But  the  un- 
dertaking of  a  carrier  as  an  insurer  cannot  be  extended  to 
merchandise  carried  by  a  traveling  salesman  in  order  to  facil- 
itate his  business.^  Nor  is  a  common  carrier  an  insurer  as  to 
time,  being  bound  only  to  transport  goods  within  a  reason- 
able time,  and  if  delay  is  caused  by  unavoidable  accident  the 
loss  ensuins  is  not  chargeable  to  it.*  In  such  cases  a  carrier  is 
bound  to  use  good  judgment  and  due  diligence.  If  the  prop- 
erty is  of  a  perishable  nature  and  the  loss  occurs  by  reason 
thereof,  it  cannot  be  held  responsible,  and  if  it  becomes  im- 
possible to  reach  its  destination  before  it  becomes  a  total  loss, 
the  carrier  may  sell  the  same  for  the  best  price  obtainable,* 
If,  however,  a  carrier  has  knowledge  that  an  article  is  intended 
for  a  certain  market,  and  unreasonably  delays  the  transporta- 
tion thereof,  during  which  delay  the  market  value  depreciates, 
it  will  be  liable  for  damages  caused  thereby.^  A  carrier  may 
refuse  to  transport  goods  which  are  improperly  packed,  and 
if  injury  occurs  by  reason  thereof  the  owner  cannot  recover, 
although  he  ma}""  for  injuries  occurring  independently  of  de- 
fective packing;"  and  m  the  absence  of  knowledge  on  the 
part  of  the  carrier  of  such  improper  packing,  it  will  not  be 
liable  for  breakage  if  it  handles  the  goods  in  the  usual  man- 
ner.' A  carrier  by  water  is  responsible  in  the  same  manner 
as  are  carriers  by  land,^  except  that  they  cannot  be  held  liable 
for  loss  of  goods  which  become  wortliless  on  account  of  delay 
caused  bv  a  low  stage  of  water.*     If  a  carrier  undertakes  to 


iBohannan  v.  Hammond,  43  Cal. 
227. 

zPenn.  Co.  v.  Miller,  35  O.  S.  541; 
Richards  v.  Westcott,  2  Bos\r.  589. 

3  American  Exp.  Co.  v.  Saiith,  33 
O.  S.  511 ;  Waring  v.  Railroad  Co.,  3 
W.  L.  B.  893. 

*  American  Exp.  Co.  v.  Smith.  33 
O.  S.  511. 

5  Devereux  v.  Buckley,  31  O.  S.  16 ; 
Texas  Pac.  Ry.  Co.  v.  Nicholson,  61 
Tex.  491 ;  Penn.  Co.  v.  Clark,  2  Ind. 
App.  146;  Cincinnati,  etc.  Railroad 
Co.  V.  Case.  122  Ind.  310. 


fiSchriver  v.  Railway  Co.,  24  Minn. 
506. 

7Rixford  v.  Smith,  52  N.  H.  355; 
Ross  V.  Railroad  Co.,  49  Vt.  364; 
Bohannan  v.  Hammond,  42  Cal.  227 ; 
Miltimore  v.  Railroad  Co.,  37  Wis. 
190;  American  Exp.  Co.  v.  Perkins, 
42  111.  458. 

8  Steamer  Niagara  v.  Cordes,  21 
How.  (U.  S.)  7. 

9  Starbick  v.  Railroad  Co.,  1  W.  L. 
B.  110. 


§  400.]  COMMON    CAKUIEKS.  373 

transport  goods  to  theiv  destination  without  change  of  cars 
and  fails  so  to  do,  it  cannot  avail  itself  of  any  restriction  upon 
its  common-law  liability  contained  in  the  contract  in  the  event 
of  loss.^  A  carrier  is  responsible  for  all  losses  arising  from 
its  neglect  of  any  duties  incident  to  its  employment,^ 

Sec.  400.  The  bill  of  lading.— The  bill  of  lading  is  the 
contract  between  shipper  and  carrier  and  is  a  symbol  of  the 
property  therein  described ;  the  ownership  may  be  transferred 
by  means  of  such  bill,  delivery  of  which  is  equivalent  to 
delivery  of  the  property ;  and  where  the  right  to  control  the 
same  is  reserved  by  the  shipper  the  carrier  is  his  agent.'  If 
the  suit  be  upon  contract  it  must  be  based  upon  the  bill  of 
lading.^  If  a  parol  contract  be  made  before  the  bill  of  lad- 
ing is  issued  the  shipper  may  prove  the  parol  contract  under 
which  the  goods  were  received  and  shipped.*  A  carrier 
is  liable  for  goods  lost  by  reason  of  its  negligence,  even  though 
the  bill  of  lading  provides  that  it  shall  not  be  liable  beyond 
an  amount  named  therein,  when  it  is  understood  by  the 
parties  that  the  amount  is  less  than  the  actual  value  of  the 
goods.®  It  is  not  essential  that  a  bill  of  lading  be  signed  by 
the  consignor,  as  it  is  binding  if  accepted  and  acquiesced  in  by 
him.'  The  right  of  stoppage  in  transitu  may  be  defeated  by  a 
bona  fide  sale  to  a  third  person  made  by  a  transfer  of  the  bill 
of  lading.^  It  is  made  the  duty  of  railroad  companies  by 
statute  to  count  or  check  packages  comprising  each  lot  or  car- 
load of  goods  or  merchandise  presented  for  shipment,  and  to 
furnish  the  shipper  a  bill  of  lading  specifying  the  number  of 
packages  shipped  in  each  car,  which  shall  bind  the  company 
to  deliver  the  same  number  of  packages  at  the  place  of  desti- 
nation named  in  the  bill  of  lading.  Upon  refusal  to  give  such 
l)ill  of  lading  the  company  becomes  liable  to  a  penalty  of  fifty 

1  Stewart  v.  M.  D.  T.  Co.,  47  la,  229 ;  5  Guillaume  v.  Transportation  Co., 
Robinson  v.  M.  D.  T,  Co.,  45  la,  470.  100  N,  Y.  491 ;   Gerniania  Fire  Ins. 

2  Welsli  V.  Railway  Co.,  10  O.  S.  65 ;  Co.  v.  Railroad  Co.,  72  N,  Y.  90 ;  a  C, 
Davidson  v,  Graham,  2  O.  S.  139.  28  Am.  Rep.  113. 

3  Emery  v.  Bank,  25  O.  S.  360.  8  U,  S.  Express  Co.  v,  Bachman,  28 
<Hall   V.   Penn.   Co.,  90  Ind.   459;     O.  S.  144. 

Pemberton  Co.  v.  Railroad  Co.,  104  ^  Railroad  Co,  v.  Pontius,  19  O,  S. 

Mass,  144;  Railroad  Co,  v.  Bennett,  221, 

89  Ind.  457  ;  Bartlett  v.  Railroad  Co.,  «  Rosenthal  v.  Dessau,  11  Hun.  49. 
94  Tn.l.  281. 


074  COMMON    CAKKIERS.  [§§  401,  402 

dollars,  which  may  be  recovered  in  a  civil  action  against  the 
com  pany,^ 

Sec.  401.  Delivery  by  carrier. —  A  carrier  is  liable  if  it 
delivers  goods  intrusted  to  its  care  to  the  wrong  person ;  ^  and 
where  it  fails  to  deliver  goods  upon  demand,  the  burden  of 
proof  is  on  it  to  account  for  the  property  and  to  excuse  its 
omission  to  so  deliver.'  If  it  refuses  to  deliver  goods  for  rea- 
sons other  than  non-payment  of  freight,  an  action  will  lie 
against  it  without  previous  demand  or  payment  of  freight.^ 

Sec.  402.  Limiting  liability. —  It  is  well-settled  law  that  a 
carrier  cannot  make  a  contract  exempting  itself  from  liability 
for  its  own  negligence  or  default  or  that  of  its  agents,  and 
that  such  a  contract  cannot  be  urged  by  it  as  a  defense ;  nor  can 
such  limitation  be  made  by  general  notice,  known  or  unknown, 
to  the  party  engaging  the  service  of  the  carrier;^  nor  can  it 
limit  its  liability  for  injuries  resulting  from  defective  and  un- 
safe cars.®  Yet  a  common  carrier  may  limit  its  liability  in  vari- 
ous ways  for  losses  which  may  happen  to  goods  without  its  fault 
or  negligence  by  special  contract  fairly  made  by  the  parties." 
SucS  an  agreement  relieves  the  carrier  only  from  the  common- 
law  liabilities  where  it  is  free  from  fault,  and  the  burden  is 
upon  it  to  prove  that  the  loss  was  occasioned  without  its 
fault.3 

That  a  carrier  may  limit  its  common-law  liability  b}'^  a  no- 
tice or  printed  receipt,  other  than  a  bill  of  lading,  the  same 
must  be  assented  to  by  the  shipper,  and  the  mere  receipt  of 
such  a  paper  by  the  agent  of  the  shipper  without  objection 
will  not  show  such  an  assent.^     This  rule,  however,  is  not  ap- 

1 91  O.  L.  207.  6  Welsh  v.  Railroad  Co.,  10  O.  S.  6.\ 

2  McCulloch  V.  McDonald,  91  Ind.  "^  Gaines  v.  Transportation  Co.,  2S 

240;  Adams  v.  Blankenstein,  2  Cal.  O.  S.  418,  438.     See,  also,  Evansville 

413.  R  R.  Co.  V.  Young,  28  Ind.  510;  In- 

8  Golden  v.  Romer,  20  Hun,  438.  dianapolis  R.  R.  Co.  v.  Allen,  31  Ind. 

4  Wiggin  V.  Railroad  Co.,  120  Mass.  394 ;  Mich.  etc.  R.  R.  Co.  v.  Heaton, 
201.  37  Ind.  448 ;  Morrison  v.  Phillips,  etc. 

5  Davidson  v.  Graham,  2  O.  S.  131 ;  Co.,  44  Wis.  405. 

Graham  v.  Davis,  4  O.  S.  362 ;  Gaines  ^  Union  Express  Co.  v.  Graham,  26 

V.  Transportation  Co.,  28  O.  S.  418,  O.  S.  595 ;  U.  S.  Express  Co.  v.  Back- 

438;  Railroad  Co.  v.  Pontius,  19  O.  S.  man,  28  O.  S.  144;  Gaines  v.  Trans- 

235;  Welsh  v.  Railroad  Co.,  10  O.  S.  portation  Co..  28  O.  S.  438. 

()5;  Liverpool,  etc.  v.  Insurance  Co.,  9  Mack  v.  Great  Western  Despatch, 

129  U.  S.  397;  Railroad  Co.  v.  Cur-  3  O.  C.  C.  36  (Ham.  Co.,  1888). 
ran.  19  O.  S.  1. 


§  402.J  COMMON    OAREIEES.  375 

plied  to  a  bill  of  lading,  as  it  has  been  expressly  held  that  a 
bill  signed  by  the  carrier's  agents,  accepted  and  acquiesced  in 
by  the  consignor,  is  binding  upon  the  latter,  though  not  signed 
by  him  ;^  nor  will  such  assent  be  presumed  from  facts  not 
clearly  showing  acquiescence  in  the  conditions  of  the  contract, 
as  the  presumption  is  that  he  intended  to  insist  upon  his  com- 
mon-law riffhts.^  In  order  to  hold  such  consignor  the  carrier 
must  specially  plead  and  prove  that  the  bill  of  lading  has 
been  assented  to  by  the  shipper.^  A  bill  of  lading  signed  by 
the  agent  of  a  carrier,  and  delivered  to  the  assignor  contem- 
poraneousl}'^  with  the  receipt  of  goods  for  shipment,  acquiesced 
in  by  him,  becomes  part  of  the  contract  of  shipment  and  can- 
not be  contradicted  by  parol.^  A  limitation  of  the  liability 
of  a  carrier  for  loss  of  baggage  on  a  ticket  is  not  binding  un- 
less the  passenger  with  full  knowledge  agrees  to  it.*  A  car- 
rier is  liable  for  the  value  of  goods  lost  by  its  negligence,  even 
though  the  contract  of  shipment  specially  provides  that  it  shall 
not  be  liable  beyond  a  certain  amount,  as  such  an  agreement 
can  only  cover  a  loss  from  a  cause  other  than  negligence  of 
the  carrier.^  Where  a  loss  occurs  from  fire  it  is  incumbent 
upon  the  carrier  to  show  its  origin,  and  it  must  bring  itself 
clearly  within  an  exception  as  to  an  unavoidable  accident 
provided  for  in  the  contract  of  shipment.''  It  is  customary 
and  perfectly  competent  for  a  shipper  and  carrier  to  enter 
into  a  contract  stipulating  what  the  damages  shall  be  in  case 
goods  are  lost  by  reason  of  negligence  of  the  carrier.®   A  con- 

.1  Railroad  Co.  v.  Pontius,  19  O.  S.  O.  S.  132;  Graham  v.  Davis,  4  O.  S. 

221 ;  Robinson  v.  M.  D.  T.  Co.,  45  la.  363 ;  Welsh  v.  Railroad  Co..  10  O.  S. 

470.  65 ;  Railroad  Co.  v.  Currari,  19  O.  S.  1 ; 

2  Railroad  Co.  v.  Barrett.  36  O.  S.  Union   Express  Co.   v.   Graham,   26 
448.  O.  S.  595 ;  Railroad  Co.  v.  Lockwood, 

3  Gaines  v.  Transportation  Co.,  28  17  Wall.  357. 

O.  S.  418;  Railroad  Co.  v.  Blackmore,  '^  Insurance  Co.  v.  Railroad  Co.,   1 

10.  C.  C.  43  (Ham.  Co.,  1885).     See  39  Disn.  480. 

Miss.  832;  42  Mo.  94;  42  111.  93;  61  SBallou  v.  Earle,  27  W.  L.  B.  83 

111.  186.  (R  I.,  1891);  Express  Co.  v.  Sands,  55 

<  Railway  Co.  v.  La  Tourette,  2  O.  Pa.  St.  140;  Oppenheimer  v.  Express 

C.  C.  279.  Co.,  69  III.  62;    Kallman  v.  Express 

5 Railroad  Co.  V.  Campbell,  36  O.S.  Co.,    3  Kan.    305;    Boehrae    v.   Ex- 

647,  648,  and  cases  cited.  press  Co.,  25  Md.  328 :   Snider  v.  Ex- 

8 U.  S.  Express  Co.  v.  Backinan,  28  P'css  Co.,  63  Mo.  376 ;   Bowman  v. 

O.  S.   144 ;   Davidson  v.  Graham,  2  Express  Co.,  21  Wis.  154 


376  COMMON    CABRIEKS.  [§  403. 

tract  that  a  carrier  shall  not  be  liable  for  breakage  operates 
only  to  relieve  it  from  its  liability  as  an  insurer,  and  will  not 
affect  its  responsibility  for  losses  occurring  by  reason  of  its 
failure  to  use  ordinary  care.* 

Sec.  403.  Connecting  carriers. —  In  order  that  a  carrier 
shall  become  responsible  for  loss  occurring  beyond  the  line  of 
its  own  route,  there  must  be  a  special  contract  to  that  effect.^ 
vBut  where  several  carriers  connect  and  form  a  continuous  line, 
and  contract  to  carry  goods  throughout  the  connecting  lines 
for  an  agreed  ])rice,  they  become  jointly  and  severally  liable 
for  loss  occurring  on  any  part  of  the  whole  line;  and  in  actions 
against  such  connecting  carriers  no  particular  word  is  neces- 
sary to  describe  the  relations  existing  between  them.'  And 
where  goods  are  received,  destined  for  a  place  beyond  the 
route  of  a  carrier,  it  is  the  duty  of  such  carrier,  in  the  absence 
of  contrary  instructions  or  usage,  to  forward  the  same  by  the 
usual  conveyance  towards  their  destination.*  A  carrier  may 
make  a  valid  contract  for  the  carriage  of  goods  beyond  the 
limits  of  its  own  road,  and  become  liable  for  the  acts  and 
negligence  of  other  carriers.^  A  carrier  who  undertakes  to 
transport  goods  over  the  route  of  another  road  must  trans- 
mit, with  their  delivery  to  the  next  carrier,  all  instructions 
received  from  the  consignor,  and  will  be  liable  for  loss  by  rea- 
son of  its  failure  so  to  do.^  Where  goods  are  shipped  over 
the  lines  of  several  connecting  carriers,  an  intermediate  carrier 
is  liable  as  a  common  carrier  for  the  loss  of  goods  after  de- 
livery to  the  next  carrier ; '  but  a  contract  that  a  carrier  will 
not  be  liable  for  loss  occasioned  by  negligence  of  a  connecting 
carrier  cannot  lawfully  be  made,  as  it  is  against  public  policy." 
A  carrier  having  baggage  for  which  it  collects  fare  for  a  con- 
tinuous trip  over  connecting  lines   undertakes  to  transport 

1  Mo.  Valley  R.  R.  Co.  V.  Caldwell,  248;    19  Wend.  534;    23  Vt   186;    5 
8  Kan.  244.  Cush.  69 ;    Ort   v.    Railway   Co.,   36 

2  Pittsburgh  R  R.  Co.  v,  Morton,  Minn.  396;  Railway  Co.  v.  Pontius. 
61  Ind.    539;   Snow  v.  Railway  Co.,  19  O.  S.  221. 

109  Ind.  422.  ^  Railroad  Co.  v.  Washburn,  22  O.  S. 

sWyman   v.   Railway  Co.,   4  Mo.  3:24. 

App.   35.    They  need   not   be  desig-  ^  Railway  Co.  v.  Lockwood,  28  O.  S. 

nated  "  partners."     Id.  358. 

*  Brown  v.  Mott,  22  O.  S.  149.  »  Railroad  Co.  v.  Pontius,  19  O."  S. 

»Fatman  v.  Railroad  Co.,  2  Disn.  221. 


§  -i04.]  COMMON    CARRIERS.  377 

the  same  safely  to  the  end  of  the  route.^  If  baggage  be  lost 
or  destroyed  after  reaching  a  connecting  line,  the  contract  of 
carriage  may  be  treated  as  entire  by  the  passenger,  even 
though  no  partnership  exists  between  the  roads,  and  may  sub- 
ject all  who  are  interested  in  the  joint  contract.  It  is  often 
difficult  to  determine,  in  cases  of  loss  of  baggage,  where  it 
actu.illy  occurs,  antl  it  has  therefore  been  held  that  the  road 
in  whose  hands  the  goods  are  found  injured  is  liable.^ 

Sec.  404.  Actions  against  carriers  relative  to  carriage  of 
goods  —  The  petition. —  The  fact  that  the  defendant  is  a 
common  carrier,  and  that  it  was  to  receive  a  reward  for  carry- 
ing and  delivering  goods,  should  be  alleged,'  and  that  the 
goods  were  delivered  to  the  carrier;  it  is  not  sufficient  to 
state  that  the  carrier  executed  a  bill  of  ladinfr.*  But  if  the 
action  is  founded  on  tort,  it  is  not  necessary  to  allege  that 
any  compensation  was  paid.^  The  owner  of  goods  suing  a 
common  carrier  to  recover  damages  for  injury  occurring  to 
goods  through  negligence  must  show  that  they  came  into  the 
hands  of  such  carrier  in  good  order,®  Where  the  allegations 
of  the  petition  are  that  the  goods  were  negligentl}'^  lost,  in- 
stead of  averring  receipt  and  non-delivery,  the  burden  of 
proof  is  upon  the  plaintiff.  If  the  grounds  for  recovery  be 
non-delivery  of  the  goods  according  to  contract,  then  it  is 
incumbent  on  the  carrier  to  plead  and  prove  due  care,'  It  is 
essential  that  the  petition  aver  delivery  of  the  goods  to  the 
carrier,  that  they  were  accepted,  and  that  the  carrier  under- 
took' to  carry  them.*  In  order  that  a  consignor  may  maintain 
an  action  against  a  carrier  he  must  allege  that  he  is  the  owner 
of  the  goods,  or  that  they  were  not  elsewhere  delivered  to 
and  accepted  b}'^  the  consignee  than  at  the  place  named  in  the 

1  Railroad  Co,  v.  Campbell,  36  O.  a     Ball  v,  N.  J.  etc.  Co.,  1   Daly,  491 ; 
647.  Page,  etc,  v.  Railroad  Co.,  4  W.  L.  M. 

2  Check   V.   Railroad   Co.,   2  Disn.     644. 

237  (1858);   Erie  R.  R  Co,  v.  Lock-  &  Wiggin  v.  Railroad  Co.,  120  Mass. 

wood,  28  O,  S.  a'iS.  201 ;  Hall  v.  Cheney,  36  N.  H.  26, 

8  Bristol   V,  Railway   Co.,  9  Barb,  « Smith  v.  Railway  Co.,  43  Barb. 

158;  McCauley  v.  Davidson,  10  Minn,  225. 

418;  Penn.  Co.  v.  Clark,  2  Ind.  App.  ^  Childs  v.  Railroad  Co.,  1  C.  S.  C,  R 

146,  480, 

♦Smith   V,  Railroad  Co.,  43  Barb.  sjordon  v.  Hazard,  10   Ala.  221; 

225;  Jordon  v.  Hazard,  10  Ala.  221;  Summerville  v.  Merrill.  1  Port  107. 


378 


COMMON    CARRIERS. 


[§  404. 


contract,  as  the  presumption  is  that  title  vests  in  the  consignee 
upon  shipment.^  A  petition  alleging  that  goods  were  deliv- 
ered to  and  accepted  by  another  to  be  carried  from  one  place 
to  another  without  reward,  that  the  same  were  lost  by  the 
bailee  through  gross  negligence,  stating  the  value  and  damage 
to  the  bailor,  states  a  good  cause  of  action.^  In  an  action 
against  an  express  company  for  the  loss  of  a  draft,  the  peti- 
tion should  state  the  date,  the  amount,  when  and  to  whom 
payable.'  Where  suit  is  brought  upon  a  contract  of  carriage 
containing  a  special  stipulation  restricting  the  liability  of  the 
carrier,  it  is  essential  that  the  same  be  specifically  set  forth 
in  the  petition,  in  accordance  with  the  rules  of  pleading- 
The  contract  should  be  set  out  truly,  either  in  terms  or  by  its 
legal  import/  An  action  may  be  maintained  by  a  shipper 
against  a  carrier  which  has  transported  goods  under  a  con- 
tract to  collect  the  purchase  price  thereof,  where  it  has  per- 
miited  the  consignee  to  open  and  examine  the  same,  and  who 
thereupon  refused  to  accept  and  pay  for  them,  and  the  goods 
have  been  returned  to  the  consignor.^  The  letters  "  C.  O.  D." 
have  a  fixed  meaning  of  w^hich  the  courts  will  take  notice;' 
and  if  goods  delivered  by  a  vendor  to  a  carrier  to  be  trans- 
mitted to  the  vendee  "  C.  O.  D."  are  destroyed  while  being  so 
transported,  an  action  for  damages  caused  thereby  may  be 
maintained  against  the  carrier  by  the  former  only,  as  title 
thereto  remains  in  the  vendor  until  they  are  received  and  paid 
for  by  the  vendee.'' 

It  is  within  the  power  of  the  legislature  to  prevent  over- 
charging for  transportation  of  passengers  or  property.^  In 
an  action  against  a  carrier  for  an  overcharge  of  rate  of  fare 
in  contravention  of  statute,  it  need  not  be  averred  that  the 


1  Madisonville  Ry.  Co.  v.  Whitesel, 
1 1  Ind.  55 ;  Penn.  Co.  v.  Holderman, 
69  Ind.  18. 

2McCauley  v.  Davidson,  10  Minn. 
418. 

3  Zeigler  v.  Wells,  Fargo  &  Co.,  23 
CaL  179. 

♦Davidson  v.  Graham,  2  O.  S.  132; 
Clark  V.  Railway  Co.,  64  Mo.  440. 
See  seu.  432, 

5  Aaron  v.  Adams  Express  Co.,  27 
W.  L.  B.  183  (Ham.  Co.  C.  P.); 
Hutchinson    on    Carriers,   sec.    393; 


Lyon   V.  Hill,  46   N.  H.  49 :  Herrick 
V.  Gallagher,  60  Barb.  566. 

6U.  S.  Express  Co.  v.  Keefer,  69 
Ind.  263. 

7  Adams  Express  Co.  v.  McDonough, 
6  O.  C.  C.  539  (Ham.  Co.,  1892);  23 
Fed,  Rep.  134;  U,  S.  Exp.  Co.  v. 
Keefer,  59  Ind.  263-268 ;  Wagner  v, 
Hallock,  3  Colo.  184;  American  M. 
etc.  Exp.  Co.  V.  Schier,  55  IlL  140 ; 
Benjamin  on  Sales,  sec.  382. 

8  71  O.  L.  146 ;  R  S.,  sees.  3368-337a 


§  405.]  COMMON   CARRIERS.  379 

purchaser  of  the  ticket  was  in  f.ict  carried  on  the  same,  or  that 
excessive  fare  was  paid  in  due  course  of  business.^  Where  a 
shipper  has  been  injured  in  his  business  by  reason  of  discrimi- 
nation made  by  a  carrier  in  favor  of  other  shippers,  the  injured 
shipper  may  maintain  an  action  against  the  carrier,  and  re- 
cover such  damages  as  he  may  have  sustained,  including  not 
only  the  amount  of  freight  illegally  exacted,  but  punitive  or 
exemplary  damages.^  A  parol  contract  by  a  railroad  to  re- 
ceive cattle  on  its  cars  for  transportation  on  a  certain  day, 
which  has  been  violated  by  not  furnishing  cars,  may  be  made 
the  basis  for  recovery  of  all  damages  caused  thereby.^  A 
cause  of  action  for  goods  destroyed  by  fire  while  in  the  hands 
of  a  carrier  need  not  be  joined  with  another  cause  of  action 
existing  at  the  same  time  for  goods  destroyed  by  fire  while 
in  the  hands  of  such  carrier  as  a  warehouseman,  and  a  judg- 
ment upon  one  cause  will  not  be  a  bar  to  a  subsequent  action 
on  the  other,* 

Sec.  405.  Petition  for  loss  of  goods. — 

{^Caption.'] 

Defendant  is  a  corporation  duly  organized  under  the  laws 

of  the  state  of ,  etc.     That  on  the day  of ,  18 — , 

the  defendant  then  being  a  common  carrier  of  goods  for  hire 
from  M,,  in  the  state  of  Ohio,  unto  C,  in  the  state  of  W,  Ya., 
plaintiff  delivered  to  defendant  as  such  carrier,  and  defendant 
then  received  from  plaintiff,  divers  goods,  to  wit  [^describe 
goods']^  of  the  value  of  $ ,  of  the  plaintiff,  which  the  defend- 
ant agreed  for  a  reasonable  reward  paid  by  plaintiff  to  carry 
from  M.,  Ohio,  to  C,  W,  Va,,  aforesaid,  ancl  at  C,  W.  Ya.,  to 
be  delivered  by  the  defendant  for  plaintiff  for  reward  to  R, 
K,  &  Co.  The  defendant  neglected  its  duty,  and  did  not 
safely  carry  said  goods  from  M.,  Ohio,  to  C,  W.  Ya,,  or  at  C, 
W,  Ya,,  deliver  the  same  for  plaintiff;  but,  by  default  of 
the  defendant  in  the  premises,  the  goods  were  and  are  wholly 
lost  to  the  plaintiff,  to  the  damage  of  the  plaintiff  in  the  sum 

of  % ,  with  interest  thereon  from  the  — —  day  of ,  18 — , 

which  he  claims,  and  for  which  he  asks  judgment. 

Note.— From  B.  &  O,  R.  R.  Co.  v.  Crawford,  Supreme  Court,  unreported. 
No.  2236, 

Rule  of  damages  is  the  value  of  floods  at  their  destination,  with  interest. 
McGregor  v.  KilKore,  6  O.  358:  Railway  Co,  v.  Lock  wood.  28  O.  S.  369; 
Sturgess  v.  Bissell.  46  N.  Y.  462;  Spring  v.  Allen,  4  Allen,  112;  Laurent  v. 
Vaughan,  30  Vt.  90. 

1  Railroad  Co.  v.  Cook.  37  O.  S.  26.").        3  Tex.  Pac.  Ry.  Co.  v.  Nicholson,  61 

2  Railway  Co.  v.  Scofield,  2  O.  C.  C.     Tex.  491. 

:iO")  (Cuyahoga  Co.,  1887).  See  Sco-  '♦Kronshage  v.  Railway  Co.,  45Wis. 
field  V.  Railway  Co.,  43  O.  S.  571.  500. 


380  COMMON    CARRIEKS.  [§§  406,  407. 

Sec.  406.  Petition  for  failure  to  safely  carry  goods. — 

^Caption.'] 

\_Formal  amrinents  as  in  sec.  4-05.'} 

On  the  day  of  ,  18 — ,   plaintiff  delivered  to  the 

defendant,  a  common  carrier,  the  following  described  goods 

of  the  value  of  dollars,  to  wit:  [describe  goods].     Said 

defendant,  in  consideration  of  the  sum  of dollars  paid  by 

plaintiff  to  said  defendant,  agreed  to  safely  and  securely  con- 
vey said  goods  from  said to  said ,  and  there  to  safely 

deliver  to  one  C.  D. 

That  defendant  did  not  safely  convey  and  deliver  said  goods 
as  it  had  undertaken  to  do,  but  on  the  contrary  conducted  it- 
self so  carelessly  in  and  about  carrying  and  transporting  the 
same  that  at -,  on  the  line  of  the  defendant's  railroad,  be- 
tween said and  — — ,  one  of  the  cars  containing  said  goods 

was  thrown  from  the  track  and  overturned  and  said  goods 
were  thereby  wholly  destroyed,  to  the  damage  of  the  plaintiff 

in  the  sum  of  dollars,  for  which  he  asks  judgment  with 

interest  from  . 

[Or,  Yet  the  said  defendant  neglected  its  duty  and  did  not 
take  care  of  said  goods,  nor  safely  carry  and  deliver  the  same 
as  aforesaid,  but  wholly  failed  and  neglected  to  carry  and  de- 
liver the  same,  whereby  said  goods  were  and  are  wholly  lost 
to  the  plaintiff,  to  his  damage  in  the  sum  of  $ .] 

Sec.  407.  Petition  for  failure  to  deliver  goods  within 
time  agreed. — 

[Caption.'] 

[Formal  averments  as  in  sec.  Ji.05.] 

On  the day  of ,  18 — ,  at  S.,  the  plaintiffs  delivered 

to  the  defendants,  who  were  then  and  there  comm'on  carriers, 

a  large  number  of [describe  property],  the  property  of  the 

plaintiff,  which  the  defendants,  in  consideration  of  a  reason- 
able and  valuable  reward  paid  them  by  the  plaintiff,  agreed  to 
safely  carry  to  the  cit}'^  of  N.,  and  there  deliver  to  the  plaintiff 

on  or  before  the day  of ,  18 — ;  but  the  defendants 

failed  to  carry  out  and  perform  their  said  agreement  in  this 
behalf,  and  did  so  negligently  and  carelessly  transport  said 
[property],  and  so  negligently  manage  their  trains,  that  they 

failed  to  deliver  said  [property]  in  said  N.  until  the  day 

of  ,  18 — .  Plaintiff  says  the  market  value  of  said  [prop- 
erty] in  said  N.  was  greatly  diminished  between  said day 

of ,  18 — ,  and  said day  of  ,  18 — ,  to  the  great 

damage  and  injury  of  the  plaintiff. 

Note. —  The  carrier  must  pay  damages  occasioned  by  delay  unless  there 
is  no  negligence  on  its  part  24  Minn.  506;  31  Am.  Rep.  353.  If  a  com- 
mon carrier  has  knowledge  that  an  article  is  intended  for  a  particular  mar- 
ket, it  is  liable  for  losses  caused  by  an  unreasonable  delay  in  its  delivery. 
Devereaux  v.  Buckley.  34  O.  S.  16,  citing  Cutting  v.  Railroad  Co.,  13  Allen, 
881 ;  Ward  v.  Railroad  Co..  49  N.  Y.  29:  Scott  v.  Steamship  Co.,  106  Mass. 
643;  Griffin  v.  Colvin,  16  N.  Y.  489.    A  contract  by  a  counectiuji  earner  H*^- 


§§  40S,  40U.]  COMMON  carrii.:rs.  3^1 

eludes  it  from  clainiins:  iindpr  the  contract  made  by  the  first  carrier.  Brovvn- 
inf?  V.  Transp.  Co..  47  N.  W.  Rep.  428. 

Damages. —  Tlie  Measure  of  damages  for  failure  to  deliver  within  time 
agreed  ui)on  is  tlie  market  value  of  the  articles  at  the  place  of  delivery  at 
the  time  they  should  have  been  delivered.  Louis  v.  Steamboat  Buckeye,  1 
Handy,  150.     See,  also,  1  C.  S.  C.  R.  300 ;  6  O.  359 :  47  N.  Y.  29 :  106  Mass.  648. 

Sec.  408.  Petition  for  failure  to  deliver  within  a  reason- 
able time. — 

r  Caption.'] 

[Formal  averments  as  in  sec.  40d.'] 

On  the day  of ,  18 — ,  plaintiff  delivered  to  said  de- 
fendant as  such  common  carrier  the  following  described  prop- 

ert_y,  of  the  value   of dollars,  to  wit  [describe  jn'operif/] ; 

which  said  g-oods  said  defendant  then  and  there  received,  and 

in   consideration   of  the  sum   of dollars  by  this  plaintiff 

paid,  said  defendant  agreed  to  safely  and  securely  convey  upon 

its  said  line  of  road  from to within   a  reasonable 

time.  That  although  a  reasonable  time  for  the  delivery  of 
said  goods  has  elapsed,  the  defendant  did  not  take  care  of  or 
safely  carry  said  goods  and  chattels,  and  safely  deliver  the 
same  to  said ,  but  has  wholly  failed  there  or  else- 
where to  deliver  the  same,  whereby  they  are  wholly  lost  to 
the  plaintiff,  to  his  damage  in  the  sura  of  $ . 

Note. —  A  carrier  is  not  an  insurer  as  to  time,  but  is  bovmd  to  transport 
goods  only  witliin  a  reasonable  time,  and  is  not  liable  for  delav  caused  from 
inevitable  accident.  American  Express  Co.  v.  Smitli.  33  O.  S.  511  ;  Ward  v. 
Railroad  Co.,  47  N.  Y.  29;  Scott  v.  Steamship  Co..  106  Mass.  6t^.  If  there 
be  delay  in  ti-ansporting  perishable  goods,  the  carrier  is  excused  if  it  makes 
reasonable  efforts  to  forward  the  same.     Id. 

Another  form: 

The  plaintiff  claims  judgment  against  the  defendant  for  the 

sum  of dollars,  the  price  and  value  of  the  contents  of  one 

box  of  goods,  shipped  by  the  ])laintiff  upon  and  over  the  rail- 
road of  the  defendant  from  D.,  Ohio,  to  S.,  Ohio;  which  said 
box  of  goods  and  contents  were  received  by  the  said  defend- 
ant as  common  carriers,  and  the  said  defendant  agreed  with 
and  promised  the  plaintiff  to  deliver  said  box  and  contents 
to  the  j)laintiff,  in  good  order,  at  S.,  Ohio,  within  a  reasonable 
time  from  the  receipt  of  said  goods  at  D.,  Ohio,  on  or  about 
the day  of ,  18 — . 

The  articles  contained  in  said  box  were  as  follows:  [De- 
scription.] 

[Prayer,  etc.] 

Note. —  From  Randall  v.  B.  &  O.  R.  R.  Co.,  Supreme  Court,  unreported. 

See.  409.  Petition  for  recovery  of  overcharge  under 
special  agreement. — 

[Caption.] 

[Formal  averments.] 

That  the  defendant  on  the day  of ,  IS — ,  entered 

into  a  contract  with  this  plaintiff  to  carry  the  following  prop- 
erty, to  wit:  [dfiscrihe  2)ro2)erti/\  from  C.  to  D..  and  deliver 


382  COMMON    CARRIERS.  [§§  410,  411. 

the  same  to ,  the  person  to  whom  it  was  consigned, 

at  said  D.,  for  the  carriage  of  which  property  said  plaintiff 
was  to  pay  said  defendant  the  sum  of  S ,  and  no  more. 

That  the  defendant  company  accepted  said  goods  in  accord- 
ance with  the  terms  of  said  contract  of  carriage  and  trans- 
ported the  same  from to ,  but  refused  to  deliver  the 

same  to  plaintiff  until  plaintiff  would  pay  for  the  transporta- 
tion thereof  the  sum  of  $ more  than  the  sum  agreed  to 

be  paid  for  the  carriage  thereof. 

Plaintiff  thereupon  tendered  defendant  the  sum  of  $ — — 
according  to  said  contract,  and  demanded  the  delivery  of  said 
goods  to  him,  which  sum  the  defendant  refused  to  receive,  and 
plaintiff  was  compelled  and  did  pay  to  defendant  the  said  sura 

of  $ ,  under  protest,  in  order  to  secure  the  delivery  of  said 

property  to  him. 

Plaintiff  has  therefore,  bj'^  reason  of  the  violation  of  said  con- 
tract by  defendant,  sustained  damages  in  the  sura  of  $ , 

for  which  he  asks  judgment. 

Sec.  410.  Petition  for  damages  for  loss  of  taggage. — 

[  Caption  and  formal  averments  as  in  sec.  4-05. ] 

That  at  the  time  hereinafter  mentioned  the  defendant  was 
and  now  is  a  common  carrier  for  hire  of  passengers  and  bag- 
gacje  by  railroad  between and . 

That  on  the day  of ,  18—,  the  plaintiff  purchased 

a  ticket  of  the  defendant  company,  which  entitled  him  to  be 

carried  as  a  passenger  on  said  railroad  from to ,  and 

which  also  entitled  him  to  transportation  on  defendant's  line 
of  railway  for  his  baggage.  That  plaintiff  did  thereupon  on 
said  date  become  a  passenger  on  said  defendant's  railway 
train  and  delivered  to  said  defendant  his  trunk,  of  the  value 

of  § ,  and  containing  chattels  of  the  value  of  $ ,  to  be 

conveyed  by  defendant  as  baggage,  which  the  defendant  com- 
pany accepted  to  be  by  it  so  carried. 

That  defendant  did  so  negligently  and  carelessly  convey 
and  transport  said  baggage  that  by  reason  of  said  negligence 
of  said  defendant  the  same  was  wholly  lost,  to  plaintiff's  dam- 
age in  the  sum  of  $ . 

Note.—  Upou  a  through  ticket  the  carrier  is  liable  for  loss  of  baggage 
at  any  part  of  the  transit,  and  any  negligent  carrier  is  also  liable.  Railroad 
Co.  V."  Roach,  27  Am.  Rep.  778;  18  Kan.  592.  Baggage  does  not  include 
articles  of  merchandise  intended  for  sale  or  for  use  as  samples.  Insurance 
Co.  V.  Railway  Co.,  14  W.  L.  B.  253.  Owner  of  baggage  is  competent  wit- 
ness to  prove  contents.     Railroad  Co.  v.  Fulton,  20  O.  318. 

See.  411.  Petition  where  notice  to  keep  dry  is  disre- 
garded.— 

[Captio7i.'] 

[_Foriii(d  averments  as  in  ante,  sec.  Jf.OS.'] 
On  said  day  the  plaintiff,  at  the  defendant's  request,  do- 
livered  to  said'  defendant  as  such  common  carrier  the  follow- 


§  412.J  COMMON    CARRIERS.  383 

ing  goods,  then  in  good'  order  and   condition,  viz. :  [describe 

them],  the  property  of  the   plaintiff,  of  the  value  of  $ ,  to 

be  by  said  defendant  safely  and  securely  carried  to •,  for 

a  consideration  to  be  paid  to  said  defendant. 

That  the  plaintiff,  at  the  time  of  the  delivery  of  the  said 
goods  as  aforesaid,  notified  said  defendant  that  in  order  to 
preserve  said  goods  it  was  necessary  to  keep  them  dry;  but 
the  defendant,  disregarding  his  duty  in  that  regard,  negli- 
gently permitted  said  goods  to  become  wet  and  destroyed  [rf 
not  destroyed  state  the  injury'],  which  loss  was  occasioned 
wholly  by  the  negligence  of  the  defendant,  by  reason  whereof 
the  plaintiff  has  sustained  damages  in  the  sum  of  $ ,  etc. 

Note. —  See  ante,  sec.  399. 

Sec.  412.  Petition  for  damages  for  negligent  breakage. — 

[Caption  and  formal  averments.] 

That  while  said  defendant  was  so  engaged  as  such  common 
carrier  plaintiff  delivered  to  said  defendant  at  the  city  of  N., 
and  the  said  defendant  then  accepted  of  and  for  said  plaint- 
iff, "  one  case  of  plate-glass "  of  the  value  of  % ,  to  be 

safely  carried  and  conveyed  on  "  fiat  cars  "  to  D.,  Ohio,  and 
there  to  be  delivered  to  said  plaintiff,  for  a  reasonable  and 
valuable  reward;  that  said  "case  of  plate-glass"  was  shipped 
at  "  owner's  risk,"  but  by  the  terms  of  the  contract  under 
which  the  same  was  received  by  the  defendant,  said  plate- 
glass  was  to  be  loaded  and  conveyed  to  D.,  Ohio,  on  a  "fiat- 
car."  Said  defendant  wholly  failed  and  neglected  to  carry 
out  its  said  contract  of  shipment,  and  did  not  convey  said 
case  of  plate-glass  on  a  "  flat-car,"  but  on  the  contrary,  and 
without  the  knowledge  or  consent  of  this  plaintiff,  did  negli- 
gently and  carelessly  place  said  case  of  ))late-glass  in  a  "  box- 
car" and  did  negligently  convey  the  same  in  a  "box-car" 
from  N.  to  D.,  Ohio,  and  did  thereby  so  carelessly  and  negli- 
gently conduct  itself  in  regard  to  the  same  in  its  said  calling 
as  a  common  carrier,  that  by  reason  of  the  carelessness,  negli- 
gence and  fault  of  the  said  defendant  as  such  common  carrier 
the  said  case  of  plate-glass,  while  being  so  negligently  shipped 
and  transported  by  said  defendant  in  said  box-car,  and  while 
in  the  care,  charge  and  control  of  the  said  defendant  as  such 
common  carrier  as  aforesaid,  was  broken,  by  reason  whereof 
the  said  plaintiff  has  sustained  damages  in  the  sum  of  $ . 

\^Prayer.] 

Note.— See  C.  C.  C.  &  I.  Ry.  v.  Welch,  23  W.  L.  B.  62.  The  carrier  to  re- 
lieve itself  from  liability  must  ship  goods  as  it  has  agreed.  Greater  care 
must  be  exercised  in  transporting  plate  glass  than  goods  less  liable  to  break- 
age.    Id.     See  Despatch  Line  v.  Glenny,  41  O.  S.  166. 


384:  COMMON    CARRIKRS.  [§§  413-415. 

Sec.  413.  Petition  for  wrongfully  delivering  goods 
shipped  C.  0.  D.— 

[  Caption  and  form.al  averment  as  in  ante,  sec.  4-05.1 

That  on  the  day  of ,  18 — ,  plaintiff  delivered  to 

defendant  company  the  following   goods,  to   wit:  [describe 

them\  the  property  of  the  plaintiff,  and  of  the  value  of  % , 

which  said  goods  the  plaintiff  had  sold  to  one  A.  B.,  at , 

to  be  paid  for  on  delivery  thereof,  and  if  not  so  paid,  to  be 
returned  to  the  plaintiff.  The  defendant  as  such  common 
carrier  did  on  said  date,  for  a  reasonable  consideration  to  be 
paid,  undertake  to  carry  and  deliver  said  goods  to  said  A.  B. 
upon  condition  that  said  A.  B.  would  pay  to  said  defendant 

company  upon  delivery  to  him  the  sum  of  $ ,  otherwise 

the  same  were  not  to  be  delivered  to  said  A.  B.,  which  said 
sum  the  defendant  agreed  to  pay  over  to  the  plaintiff.  De- 
fendant, wholly  disregarding  its  duty  in  this  behalf,  delivered 
said  goods  to  said  A.  B.  without  collecting  and  receiving  the 

price  thereof,  to  wit,  the  sum  of  % ,  and  has  wholly  failed 

and  neglected  to  pay  the  same  to  plaintiff. 

The  plaintiff  has  not  received  payment  for  said  goods,  to 
his  damage  in  the  sum  of  $ . 

Note.— See  ante,  sec.  404,  p,  378,  note  7. 

Sec.  414.  Petition  for  failure  to  receive  and  carry  goods. 

\Caption^^ 

[Formal  averments  as  in  ante,  sec.  Ji.OS.'] 

On  the day  of ,  18 — ,  plaintiff  tendered  to  the  de- 
fendant company  the  following  goods,  to  wit:  [Description.'] 
Said  goods  were  properly  packed  and  in  good  condition  for 
shipment,  so  that  defendant  could  safely  carry  the  same,  and 
plaintiff  then  and  there  requested  said  defendant  company  to 

receive  said  goods  and  transport  the  same  from to •, 

a  city  on  the  line  of  said  defendant's  railroad,  and  tendered 
said  company  and  offered  to  pay  it  the  sura  of  $ ,  its  reg- 
ular charges' for  carrying  such  goods  the  distance  which  said 
plaintiff  desired  to  have  said  goods  carried;  but  that  said  de- 
fendant company  wholly  failed  and  refused  to  receive  said 
goods  or  to  transport  the  same  to  the  place  desired  by  plaint- 
iff, although  said  goods  were  in  proper  condition  for  trans- 
portation, and  said  defendant  company  had  ample  cars  and 
equipments  to  transport  and  carry  the  same.  That  by  reason 
of  the  conduct  of  said  defendant  company  in  so  failing  to  re- 
ceive and  transport  said  goods  plaintiff  has  sustained  damages 
in  the  sum  of  $ ,  for  which  he  asks  judgment. 

Sec.  415.  Petition  against  railroad  company  for  recovery 
of  illegal  freight  charges. — 

The  said  plaintiffs  say  that  said  company,  defend- 
ant, is  an  incorporated  company,  duly  organized  under  the 


416.]  COMMON   CARRIERS. 


5S5 


laws  of  said  state.  And  said  plaintiffs  aver  that  said  defend- 
ant is  the  owner  of  a  certain  railroad  located  in  snid  county, 
known  as  the  "  Iron  Kailroad,"  which  said  road  is  o  .  er  twelve 
miles  in  length  and  is  not  a  road  in  course  of  construction. 

and  the  gross  earnings  of  which  are  less  than  $ per  mile 

per  annnm;  that  on  the day  of ,  IS—,  said  plaintiffs, 

in  good  faith  and  in  due  course  of  their  business,  caused  to  be 
transported  upon  and  over  said  "Iron  Railroad,"  while  so 
owned  and  operated  by  defendant  as  aforesaid,  from  C.  sta- 
tion, in  said county,  to  said  city  of  I.,  a  distance  of 

miles  and  no  more, pounds  of  pig  iron,  for  which  trans- 
portation said  defendant  was  entitled  1:o  demand  and  receive 

from  said  plaintiff  tlie  sum  of  $ and  no  more,  said  su-.n 

being  the  amount  due  said  defendant  at  the  rate  of cents 

per  ton  per  mile ;  yet  said  defendant,  its  officers  and  agents, 
in  violation  of  law,  demanded  and  received  of  plaintiff  for 

said  transportation  the  sum  of  $ -,  being  S in  excess 

of  the  amount  authorized  by  law  for  said  transportation,  as 
aforesaid,  by  said  defendants.  By  reason  of  the  premises, 
plaintiff  is  entitled  to  recover  from  defendant  the  sum   of 

$ .     The  said  plaintiff  therefore,  by  virtue  of  and  under 

the  provisions  of  the  law,  asks  judgment  against  said  defend- 
ant for  said  sum  of  § . 

Note.—  From  Iron  R.  Co.  v.  Kellev,  error  to  circuit  court  of  Lawrence 
county,  S.  C,  No.  1285.  See  R.  S.,  sees.  3373,  3376 ;  Railway  Co.  v.  Furnace  Co., 
49  O.  8.  102.  Intei-est  on  a  penalty  for  overcharges  cannot  be  charged.  Id. 
See  Brundred  v.  Rice,  49  O.  S.  640.  Whether  or  not  a  freight  rate  is  reason- 
able is  a  question  of  fact  to  be  determined  in  each  case. 

Sec.  416.  Actioiis  against  carriers  with  respect  to  car- 
riage  of  passengers  —  The  petition. —  A  common  carrier  must 
carry  all  proper  persons  who  offer  themselves  for  passage.^  A 
ticket  is  regarded  as  a  mere  receipt  or  voucher,  showing  that 
the  person  holding  it  has  paid  his  fare  and  is  entitled  to  ride 
thereon."  A  person  who  obtains  a  ticket  by  fraud  cannot  give 
title  thereto  by  sale  to  another.^  A  carrier  may  expel  a  pas- 
senger for  refusing  to  pay  his  fare  at  any  place  other  than  a 
depot,  and  will  not  be  liable  provided  care  is  taken  not  to  ex- 
pose him  to  serious  injury  or  danger.*  And  so  it  may  remove 
a  passenger  who  is  riding  upon  a  ticket,  the  limitation  of  which 

1  Barney  v.  Steamboat  Co.,  67  N.  Y.  647 ;  Lawson  on  Carriers,  sec.   106 ; 

301 ;  Lake  Erie,  etc.  Ry.  Co.  v.  Acres,  Frank   v.  lugalls.  41  O.  S.  560;  Rail- 

108  Ind.  548;  Bennett  v.  Button,  10  road  Co.  v,  Campbell,  36  O.  S.  658. 

N.  H.  481 ;   Indianapolis,   etc.  R.  R.  » Frank  v.  Ingalls,  41  O.  S.  560. 

Co.  V.  Riuard,  46  Ind.  293.  *  Railroad  Co.  v.  Skillman,  39  O.  S. 

-  Railroad  Co.  v.  Bartram,  11  O.  S.  444. 
457;  Railroad  Co.  Campbell.  36  O.  S. 


386 


COMMON    CARKIEKS. 


[§  il6. 


has  expired,  even  thongli  such  passenger  has  been  prevented 
from  reaching  the  end  of  his  journey  before  the  expiration  of 
his  ticket  by  reason  of  delay  in  trains.  The  fact  that  a  ticket 
has  been  wrongfully  taken  up  will  not  relieve  a  passenger 
from  the  duty  of  providing  himself  with  another,  and  if  re- 
moved for  failing  so  to  do,  his  action  must  be  for  the  wrong- 
ful taking  up  of  the  ticket  and  not  for  the  expulsion.-  A 
passenger  who  voluntarily  leaves  a  train  after  having  given 
up  his  ticket  and  stops  over  at  a  certain  station,  and  again  re- 
sumes his  journey  on  the  same  ticket,  may  also  be  expelled 
upon  refusal  to  pay  his  fare.*  In  the  absence  of  an  express 
agreement  to  the  contrary,  a  carrier  is  liable  to  a  passenger 
whom  it  undertakes  to  carry,  with  or  without  compensation, 
for  any  injury  caused  by  culpable  negligence  or  want  of  skill 
on  the  part  of  its  agents.^  A  passenger  traveling  in  a  sleep- 
ing-car may,  in  the  absence  of  notice  to  the  contrary,  assume 
that  the  whole  train  is  under  one  management,  and  may 
maintain  an  action  against  the  railroad  company  for  injury 
received  through  the  negligence  of  an  employee  of  the  sleep- 
ing-car.5  If  a  passenger  has  been  carried  beyond  the  place  of 
destination,  he  may  maintain  an  action  against  the  carrier  for 
any  injury  caused  thereby,*^  although  the  duty  is  incumbent 
upon  a  passenger  to  ascertain  for  himself  whether  or  not  the 
train  upon  which  he  embarks  will  put  him  off  at  the  place 
where  he  desires  to  stop.''  The  remedy  or  right  of  action 
given  to  a  passenger  who  has  been  wrongfully  carried  past  the 
station  of  his  destination  is  upon  an  implied  contract,  and  not 
ex  delicto^  In  such  action  the  plaintiff  must  aver  that  the 
train  on  which  he  took  passage  was  one  which  by  the  regula- 
tions of  the  company  should  have  stopped  at  the  station  where 


1  Penn.  Co.  v.  Hine,  41  O.  S.  276. 

2Shelton  v.  Eaihvay  Co.,  29  O.  S. 
214.  See  chapter  on  Assault  and  Bat- 
tery, sec.  230. 

3  Hatten  v.  Railroad  Co.,  39  O.  S. 
375 ;  Railroad  Co.  v.  Bartram,  11  O.  S. 
457. 

4  Nolton  V.  West.  R  R  Corp.,  15 
N.  Y.  444. 

6  Railroad  Co.  v.  Walrath,  38  O.  S. 
461   (1882).     See  Penn.   Co.  v.   Roy, 


102  U.  S.  451;  Thorpe  v.  Railway 
Co.,  76  N.  Y.  402 ;  Kinsley  v.  Railroad 
Co.,  125  Mass.  54. 

6  Whitewater  R.  R  Co.  v.  Butler, 
112  Ind.  598;  Terre  Haute  R.  R  Co. 
V.  Buck,  96  Ind.  346. 

7  Johnson  v.  Railroad  Co..  46  N.  H. 
213;  Pittsburgh,  etc.  Ry.  Co.  v.  Nuz- 
zen,  50  Ind.  141. 

8  Evansville,  etc.  R  R  Co.  v.  Kyte, 
32  N.  E.  Rep.  1134  (Ind.,  1893> 


§§  417,  418.J  COMMON   CARRIERS.  3S7 

the  passenger  desired  to  stop,  or  that  by  sj^ecial  contract  the 
company  had  agreed  to  carry  him  to  that  station  upon  that 
train.i  An  allegation  that  the  plaintiff  was  ready,  willing 
and  offered  to  pay  such  sum  as  the  carrier  was  legally  entitled 
to  charge  is  sufficient  in  an  action  for  a  breach  by  the  carrier 
in  not  conveying  a  passenger.^ 

Sec.  417.  Petition  for  failure  to  receive  and  carry  pas- 
senger.— 

[Caption.'] 

[Formal  averments  as  in  sec.  ^.Oo.] 

Plaintiff  alleges  that  on  the  day  of ,  18—,  he  ap- 
plied to  the  agents  of  the  defendant  company  at  its  depot  at 

for  a  passage  on  train  number ,  which  said  train, 

according  to  the  schedules  of  said  defendant  corapan}^,  was 
announced  to  stop  at  said  station;  that  plaintiff  was  in  a 
proper  condition  to  be  received  and  carried  as  a  passenger  on 
said  train  of  the  defendant  company,  and  it  had  sufficient 
means  and  facilities  for  carrying  him^  but  said  defendant  un- 
lawfully and  wrongfully  refused  to  receive  and  carry  plaintiff 

on  said  train  as  a  passenger  to  said  station ,  by  reason 

whereof  plaintiff  was  damaged  in  the  sum  of  § . 

Sec.  418.  Petition  against  railroad  company  for  wrong- 
ful ejection  of  passenger. — 

Defendant  is  a  corporation  duly  organized  under  and  by 
virtue  of  the  laws  of  the  state  of  Ohio,  for  the  purpose  of  con- 
structing, operating  and  running  a  railroad  from  the  citv  of 
B.,_  in  the  state  of  New  York,  to  the  city  of  C,  in  the  state  of 
Illinois,  and  that  before  and  at  the  time  of  committing  the 
wrongs  and  injuries  hereinafter  stated,  owned,  controllecfaiid 
used  said  railroad  running  from  and  between  said  dities  of  B. 
and  C,  with  its  locomotives  and  cars,  as  a  common  carrier 
of  freight  and  passengers  over  and  upon  said  line  of  railroad ; 

and  that  said  M.  M.  T.,  plaintiff,  on  the  night  of  the day 

of ,  18—  at  about  the  hour  of o'clock,  at  S.,  in  the 

state  of  Ohio,  one  of  the  stations  on  said  road,  bought  a  ticket 
from  the  agent  of  said  defendant  authorizing  her,  as  a  pas- 
senger, to  pass  over  said  road,  in  the  cars  of  the  defendant, 
from  said  S.  station  to  the  city  of  C,  in  said  state  of  Ohio, 
and  that,  as  such  passenger,  said  plaintiff  then  and  there  en- 
tered the  cars  of  said  defendant,  which  were  then  standing 
upon  said  railroad  and  about  to  depart  for  said  city  of  C,  and 
was  about  to  take  her  seat  therein  for  the  purpose  of  being 

1 0.  &  M.  Ry.  Co.  V.  Hatton,  60  2  Tarbell  v.  Railway  Co.,  34  CaL. 
Ind.  12.  616. 


388  COMMON    CAKRIEKS.  [§  419. 

conveyed  to  said  city  of  C. ;  yet  the  said  defendant,  by  its 
agents  and  servants,  disregarding  its  duty  as  such  common 
carrier  of  passengers,  did  before  said  cars  of  said  defendant 
had  reached  the  end  of  said  journey,  to  wit,  at  the  said  S. 
station,  wrongfully,  forcibly,  maliciously  and  unlawfully  force, 
expel  and  drag  the  said  ])laintiff  from  the  cars  of  said  defend- 
ant, and  refused  the  said  plaintiff  permission  to  ride  in  said 
cars  of  said  defendant,  and  left  said  plaintiff  there  in  the  night 
time,  where  she  was  an  entire  stranger,  with  the  temperature 
at  about  zero,  without  having  completed  her  said  journey;  at 
which  place  she  was  compelled  to  remain  until  the  next  morn- 
ing at  eight  o'clock,  before  she  could  continue  her  journey, 
whereby  she  was  greatly  delayed  in  her  business,  and  other 
wrongs  then  and  there'wrongfuUy,  forcibly,  maliciously  and 
unlawfully  did  to  said  plaintiff,  to  the  damage  of  said  j)laint- 

iff dollars. 

"Wherefore  the  plaintiff  prays  judgment  against  said  de- 
fendant for  the  sum  of dollars,  as  damages  sustained. 

Note.— From  L.  S.  &  M.  S.  Ry.  Co.  v.  Tattle,  Supreme  Court,  unreported. 
No.  1187. 

Damages.—  Injury  to  feelings,  indignity,  mental  suffering  and  wounded 
pride  may  be  considered  in  estimating  damages  where  no  personal  iniury 
is  inflicted.  Gormon  v.  Southern  Pac.  Co.,  81  Pac.  Rep.  1112.  Rate  of  fare. 
see  R.  S.,  sec.  3374.  This  action  is  of  a  different  nature  from  one  for  an  assault. 
See  ante,  sees.  230-33.  Compensatory  damages  only  can  be  allowed  where 
the  passenger  ejected  became  a  passenger  expecting  to  be  ejected,  to  enable 
him  to  bring  suit  against  the  company.     Railroad  Co.  v.  Cole,  29  O.  S.  126. 

Sec.  419.  Petition  for  carry iug  passenger  past  station.— 

\_Captio7%.'] 

\Fonnal  averments.'] 

On  said  day  plaintiff  purchased  from  the  defendant  a  ticket 

at ,  entitling  him  to  passage  on  said  road  from to 

,  a  station  on  said  railroad,  and  took  passage  on  defend- 
ant's car  for  said  station. 

That  said  station  at was,  by  the  rules  and  regulations 

of  the  defendant,  a  regular  stopping  place  for  its  trains,  and 
the  train  on  which  the  plaintiff'  took  passage  was  accustomed 
to  stop  thereat. 

[Or,  In  consideration  of  plaintiff's  buying  said  ticket,  de- 
fendant at  the  time  promised  and  agreed  to  stop  its  train  and 
put  him  off  at  said station.] 

Defendant  wholly  neglected,  failed   and  refused  to  stop  at 

said station,  and  did  not  let  plaintiff  off  said  train  until 

its  arrival  at ^,  a  station  ■ miles  beyond.  That  by  rea- 
son of  said  defendant's  conduct  in  this  behalf  plaintiff  was 
put  to  an  expense  of •  dollars  to  return  to  said sta- 
tion, and  sustained  damages  in  the  sum  of dollars. 

Note.— R.  S.,  sec.  3320.  As  to  negligence  in  carrying  beyond  platform, 
see  Railway  Co.  v.  Doane,  115  Ind.  435 ;  17  N.  E.  Rep.  913.  A  passenger  must 
inform  himself  of  rules  as  to  time-tables  and  stoppage  of  trains. 


§  -i'iO.J  OOMMON    OAKKIERS.  380 

Sec.  420.  Defenses  to  actions  ag:ainst  common  carriers. — 

A  carrier  cannot  be  held  liable  for  a  delay  caused  by  an  in- 
evitable accident  over  which  it  had  no  control.^  A  defense 
that  loss  of  baggage  was  caused  by  spontaneous  combustion 
of  an  article  in  the  baggage  of  another  passenger  cannot  be 
made  upon  the  theory  that  it  was  the  act  of  God.^  It  seems 
to  be  generally  conceded  that  where  a  carrier  desires  to  inter- 
pose an  act  of  God  as  a  defense  to  an  action  for  loss  of  goods, 
such  as  an  extraordinary  flood,  it  may  do  so  under  a  general 
denial.^  When  intervening  such  a  defense  the  burden  is  upon 
the  plaintiff  to  show  that  loss  was  caused  by  the  negligence 
of  the  carrier/  But  when  goods  are  found  injured  in  charge 
of  a  carrier  the  burden  is  upon  it  to  show  that  the  same  oc- 
curred from  a  cause  such  as  will  constitute  a  legal  defense.* 
Though  an  action  sounds  in  tort  the  carrier  may  set  up  in  its 
answer  a  special  contract  of  shipment,  if  it  be  one  which  the 
law  permits  it  to  make;"  but  where  a  carrier  sets  up  a  con- 
tract of  shipment  different  from  that  claimed  by  plaintiff,  it 
is  incumbent  on  it  to  prove  that  the  same  had  been  performed 
on  its  part,  and  sanctioned  and  assented  to  by  plaintiff,  in 
order  that  it  may  be  available  as  a  valid  defense/  Nor  can 
a  carrier  by  a  special  contract  of  shipment  defeat  an  action  in 
tort  for  non-delivery,  based  upon  the  common-law^  obligation 
to  use  due  diligence  in  transportation/  A  judgment  against 
one  of  two  carriers  for  breach  of  a  joint  contract  for  the  car- 
riage of  goods  is  a  bar  to  a  subsequent  action  against  both 
carriers  upon  the  same  contract/  And  so  a  judgment  in  favor 
of  a  carrier,  in  an  action  for  the  recovery  of  freight,  is  a  bar 
to  an  action  by  the  owner  of  the  goods  for  the  recovery  of 
damages  for  their  destruction,  caused  by  failure  on  the  part 
of  the  carrier  to  perform  its  contract  of  transportation/'^    Un- 

1  L.  S.  &  M.  S.  Ry.  Co.  v.  Bennett,  ^  Id. 

S9   lud.   457;    Hill  v.  Penu.  Co.,  90  5  Hall  v.  Cheney,  36  N.  H.  26. 

Ind.  459.  6  Oxley  v.  Railway  Co..  65  Mo.  629- 

•^  K(nth  V.  Railroad  Co.,  1  W.  L.  M.  633. 

451.  7 Railroad  Co.  v.  Black. nore,  1  O. 

3Ellett  V.  Railroad  Co.,  76  Mo.  518 ;  C.  C.  42  (Ham.  Co.,  1885). 

Davis  V.  Railway  Co.,   16  W.  L.  B.  8 Clark  v.  Railway  Co.,  64  Mo.  440. 

427  (Mo.,  1886).     See  Hutchinson  on  « Reynolds  v.  Railroad  Co.,  29  O.  S. 

Carriers,  sees.  766,  767;  Lawsou  on  602. 

Carriers,  sec.  248.  lO  Dunham  v.  Bower.  77  N.  Y.  76. 


390  COMMON   OAKRIERS.  [§  ^'^^' 

less  a  carrier  actually  receives  goods  into  its  possession,  there 
is  no  liability  imposed  upon  it,  even  to  an  innocent  consignee 
or  indorsee  for   value;  and  the  carrier  may  show  that  the 
goods  were  not  in  fact  received.^    Where  a  shipper  intrusts 
goods  to  a  carrier,  requiring  a  particular  degree  of  care  in 
their  transportation,  but  does  not  give  the  actual  contents  or 
precise  nature  of  the  same,  the  carrier  may,  in  an  action  for 
their  loss,  set  up  a  defense  that  it  did  not  receive  or  agree  to 
transport  the  particular  kind  of  goods.     And  it  may  be  shown 
under  a  general  denial  that  it  did  not  enter  into  a  contract  to 
receive  the  particular  kind  of  goods  because  of  the  deception 
of  the  shipper.2     ^  carrier  of  passengers  in  Ohio  is  required 
bv  statute  to  cause  a  certain  number  of  reguhir  trains  for  pas- 
sengers to  stop  daily,  at  stations  where  there  are  three  thou- 
sand inhabitants,  a  sufficient  length  of  time  to  receive  and  let 
off  passengers,  and  prescribes  a  penalty  for  failing  so  to  do.' 
Hence  it  follows  that  in  an  action  by  a  passenger  who  has 
been  ejected  because  he  holds  a  ticket  for  a  station  at  which 
the  train  does  not  stop,  in  view  of  the  statute  a  defense  can- 
not be  urged  that  by  the  regulations  of  the  carrier  the  train 
does  not  stop  at  the  station  for  which  the  ticket  calls,  if  there 
be  a  population  of  three  thousand  inhabitants  at  such  place." 
Sec.  421.  Answer  that  goods  were  lost  by  land-slide  — 
Flood  — Act  of  God.— 

[Special  contract  of  shijjment  may  first  le  set  up,  as  in  sec.  J^'B'B, 
post.'] 

Defendant  says  that  while  said  merchandise  was  bemg 
transported,  pursuant  to  the  above  special  contract,  and  with- 
out any  carelessness  or  misconduct  of  the  defendant  or  its 
servants,  or  any  defect  of  the  car  in  which  said  goods  were 
being  transported,  the  train  of  cars  of  which  the  car  in  which 
plaintiff's  goods  were  being  transported  formed  a  part  was 
stopped  without  fault  of  defendant  or  its  servants  in  the  nar- 
rows between  B.,  W.  Ya.,  and  M.,  W.  Va.,  by  a  "land-slide," 

and  detained  for  the  space  of hours,  and  when  said  track 

was  cleared  so  that  said  train  of  cars  could  and  did  proceed  to 
M.,  W.  Ya.,  where,  without  any  fault  of  defendant  or  its  serv- 

1  Bank  v.  Railroad  Co.,  24  AV.  L.  B.  <  Penn.  Co.  v.  Wentz,  37  O.  S.  333. 
835  (Minn.,  1890).  Such  regulations  are  subject  to  legis- 

2  Despatch  Line  v.  Glenny,  41  O.  S.  lative  control.  Commonwealth  v. 
166.  See  Angell  on  Carriers,  sec.  265  Railroad  Co.,  103  Mass.  254;  Shields 
(5th  ed.).  V.  State,  26  O.  S.  86 ;  S.  C,  95  U.  S. 

3  R.  S.,  sec.  3320.  319. 


§§  422,  423.]  COMMON  carriers.  391 

ants,  said  train  of  cars,  ,of  which  the  car  in  which  plaintiff's 
goods  were  being  transported  formed  a  part,  was  caught  in 
an  unusual  flood  of  water,  and  said  goods  were  so  badly  dam- 
aged as  to  render  them  worthless  by  unavoidable  accident  by 
said  unusual  flood,  and  not  by  any  default,  negligence  or  mis- 
conduct of  the  defendant.  AV  hereupon  defendant,  having  fully 
answered,  asks  to  be  dismissed. 

Sec.  422.  Answer  that  liability  was  limited  by  special 
contract. — 

\^Caption.'] 

Defendant  admits  that  the  goods  described  in  the  petition 
were  shipped  on  its  cars,  and  were  damaged,  as  alleged,  but 
says  that  the  same  were  shipped  under  special  contract,  which 
])rovided  in  substance:  [here plead  substance.'] 

That  the  defendant  fully  complied  on  his  part  with  the  con- 
ditions of  said  contract  to  be  performed,  and  said  injury  and 
damage  resulted  without  the  fault  or  negligence  of  defendant. 

That  the  plaintiff  did  not  comply  with  the  conditions  of 
said  contract  in  this :  [state  wherein  carrier  failed.'] 

That  by  reason  of  the  plaintiff's  failure  to  comply  with  said 
contract  and  of  his  acts  above  stated  said  injury  resulted. 

[Or,  That  while  defendant  was  transporting  said  goods 
under  said  contract,  using  ordinary  care  and  all  proper  dili- 
gence, the  same  were,  without  any  fault  or  negligence  on  de- 
fendant's part,  destroyed  by  {state  hoio  destroyed)] 

Note. —  A  carrier  may  by  special  agreement  limit  its  liability,  but  not  by 
a  general  notice  unknown  to  the  jiarty  engaging  tlie  service  of  the  carrier. 
Gaines  v.  Trans.  Co.,  28  O.  S.  437  ;  Davidson  v.  Graham,  2  O.  S.  131 :  Graham 
V.  Davis,  4  O.  S.  862 ;  Welsh  v.  Raihoad  Co.,  10  O.  S.  Co ;  Raihoad  Co.  v. 
Pontius,  19  O.  S.  221.  The  burden  is  on  tlie  carrier  to  prove  the  special  con- 
tract, and  that  the  loss  falls  within  the  terms  thereof.  Graham  v.  Davis, 
supra;  Union  Exp.  Co.  v.  Graham,  26  O.  S.  595;  United  States  Exp.  Co.  v. 
Bachmau,  28  O.  S.  144.  In  the  absence  of  fraud,  evidence  cannot  be  admit- 
ted to  show  that  the  consignor  did  not  know  the  contents  of  a  bill  of  lading. 
Grace  v,  Adams,  100  Mass.  505  ;  Kirkland  v.  Dmsmore,  16  N.  Y.  171. 

Sec.  423.  Answer  that  property  was  stolen  withont  de- 
fendant's fault. — 

Defendant  admits  that  the  goods  described  in  the  petition 
were  directed  and  shipped  as  therein  stated,  but  says  that  it 
safely  carried  said  goods  to  said  city  of ,  and  to  the  ad- 
dress of  said  K.  F.  at  said  city,  as  niarked  on  said  packages 
and  contained  in  the  bill  of  lading. 

That  defendant  thereu]:)on  made  diligent  search  for  said 
R.  F.,  but  found  that  he  did  not  reside  or  do  business  at  said 
city,  and  was  not  ther^. 

That  defendant  made  inquiry  of  various  i>ersons  in  said  city 
as  to  the  whereabouts  of  said  II.  F.,  and  found  that  he  form- 
erly resided  at  the  place  to  which  said  goods  were  addressed, 
but  could  not,  after  diligent  and  careful  search  in  said  neicrh- 


392  COMMON    CAKRIERS.  [§  424. 

borhood  and  throughout  said  city,  learn  where  he  resided,  or 
had  gone,  or  his  present  residence. 

That  defendant  immediately  notified  the  plaintiff,  who 
shipped  said  goods,  that  said  R.  F.  could  not  be  found,  and 
placed  said  goods  {state  the  place  and  showing  it  to  he  a  safe 
jAaoe  for  storing  or  keeping  the  'kind  of  goods  lost],  and  kept 
and  cared  for  the  same  in  a  proj)er  and   careful   manner,  but 

on  the  day  of ,  18 — ,  without  the  fault  or  negligence 

of  the  defendant,  said  [the  place  tohere  the  goods  were 

stored]  was  broken  into  by  some  unknown  ])ersons,  and  said 
goods  were,  without  the  fault  or  negligence  of  defendant, 
stolen  therefrom,  and  have  not  been  recovered. 

Sec.  424.  Answer  that  goods  were  improperly  packed. — 

Defendant  says  that  the  goods  mentioned  in  plaintiff's  peti- 
tion were  of  such  a  nature  as  to  be  easily  broken,  from  a  very 
slight  cause,  and  great  care  should  have  been  exercised  by 
said  plaintiff  in  preparing  the  same  for  shipment,  all  of  which 
said  plaintiff  w^ell  knew,  but  that  this  defendant  could  not  rea- 
sonably be  expected  to  know  the  nature  thereof. 

That  said  goods  were  delivered  by  plaintiff  to  this  defendant 
packed  in  an  improper  and  careless  manner  [ha^e  state  particu- 
lars], when  they  should  have  been  packed  [hei'e  state  how  they 
should  have  heen pacl'ed],  and  that  by  reason  of  said  defective 
packing,  and  without  any  fault  or  negligence  on  the  part  of 
this  defendant,  said  goods  were  injured. 

Wherefore,  etc. 

Note. —  A  carrier  may  refuse  to  receive  articles  improperly  packed,  but 
if  received  must  use  due  care,  and  if  lost  must  show  that  it  was  caused  by 
the  defective  packing.     Union  Exp.  Co.  v.  Graham,  26  O.  S.  595. 


CHAPTEE  27. 


CONTEMPT. 


Sec.  425.  What    are    contempts    of 
court 

426.  What   contempts    may  be 

punished  summarily. 

427.  Cliai'ge  in  proceedmgs  for 

contempt  —  How  made. 

428.  Charge  of  contempt  for  as- 

saulting officer. 


Sec.  429.  Information  charging  con- 
tempt in  writing  scurri- 
lous articles  in  newpaper. 

Proceeding  upon  filing  of 
charge. 

The  hearing. 


430. 


431. 


Sec.  425.  What  are  contempts  of  court. —  The  code  pro- 
vides that  disobedience,  or  resistance  to  a  hxwful  writ,  process, 
order,  judgment  or  demand  of  a  court  or  an  officer,  or  mis- 
behavior of  an  officer  in  court  or  in  his  official  transactions, 
or  a  failure  to  obey  a  subpoena,  or  a  refusal  to  be  sworn  or  to 
answer  as  a  witness,  or  the  rescue  or  attempted  rescue  of  a 
person  or  of  property  in  the  custody  of  an  officer,  or  the  fail- 
ure of  a  person  to  appear  as  a  witness  in  compliance  with 
a  recognizance,  constitute  contempts  of  court.^  In  addition 
to  this  provision  there  are  other  acts  which  are  made  con- 
tempts by  adjudication  and  statutory  enactment.  Where  a 
person  summoned  as  a  juror  refuses  to  serve  without  reason- 
able excuse;-  or  a  garnishee  who  has  been  regularly  served 
with  process  fails  to  appear  and  answer;^  or  a  person  refuses 
to  be  sworn  or  to  answer  as  a  witness,  except  in  cases  where 
fees  are  not  paid  ;*  or  the  non-performance  of  an  act  ordered 
to  be  done  b}'"  an  award ;  *  or  disobedience  of  an  order  of  a 
referee  ;•*  or  an  interference   with  an  officer   appointed    by 


1  O.  Code,  sec.  5640. 

2  R.  S.,  sec.  5178. 

3  R.  S.,  sec.  5549. 

4  R.  S.,  sees.  5253,  5605.  See  15  W. 
L.  B.  192 ;  Id.  267 ;  10  O.  836.  Con- 
tra, 3  O.  C.  C.  264 ;  4  W.  L.  B.  457 ; 
R.  S.,  sees.  5254-5257;  15  W.  L.  B. 
192.  A  notary  public  in  taking 
depositions  has  power  to  punish  for 


contempt  a  witness  who  refuses  to 
answer.  De  Camp  v.  Archibald,  31 
W.  L.  B.  39 ;  50  O.  S.  618 ;  Doggo  v. 
State,  21  Neb.  273-8;  In  re  Aboles, 
12  Kan.  451 ;  Ex  parte  McKee,  18  Mo. 
599 ;  Burnside  v.  Dewstoe,  15  W.  L.  B. 
197. 

5  R.  S.,  sec.  5610. 

fi  R.  S.,  sec.  5481. 


394 


CONTEMPT. 


[§  -^25. 


court;'  or  disobedience  by  a  witness  of  an  order  requiring 
a  separation  of  witnesses;^  or  a  refusal  to  pay  alimony;^  or 
disobedience  of  an  order  to  abate  a  public  nuisance;*  or  re- 
fusing to  make  a  return  of  a  writ  of  habeas  corpus;^  or  a 
purchaser  at  a  sheriff's  sale  failing  to  pay  the  purchase- 
money,'^  are  all  declared  or  held  to  be  contempts  of  court. 
A  Avitnessis  guilt}^  of  contempt  if  he  refuses  to  testify  as  an 
expert  without  being  paid  extra  compensation.' 

The  delivery  to  the  sheriff  of  property  attached  for  which 
an  undertaking  has  been  given,  ot  the  payment  of  money  due 
upon  such  undertaking,^  or  the  deposit  or  delivery  of  monef 
or  other  thing,  may  be  enforced  by  proceedings  in  contempt.^ 
And  so  may  disobedience  of  an  injunction  or  restraining 
order  be  punished  as  a  contempt.'"  But  the  payment  of  a  debt 
where  there  has  been  no  fraud  practiced  cannot  be  enforced 
as  for  contempt."  Nor  can  a  person  who  abstracts  a  paper 
from  the  files  of  a  court  be  punished  as  for  contempt.'- 

As  a  receiver  is  an  officer  of  court,  and  the  property  placed 
in  his  hands  is  in  fact  in  the  custody  of  the  court,  it  follows 
that  any  interference  with  the  same  in  any  manner  is  in  con- 
tempt of  court.  An}'^  one  who  attempts  to  levy  an  execution 
or  an  attachment  upon  the  property,  or  who  interferes  there- 
with in  any  manner,  is  guilty  of  contempt.^'  The  title  to  prop- 
erty passes  the  moment  the  order  aj-tpointing  the  receiver  is 
made,  whether  reduced  to  possession  or  not,  and  even  before 
the  appointment  is  in  all  respects  perfected ; "  so  that  a  second 
receiver,  subsequently  appointed,  if  only  an  hour  or  more  in- 


1  Spinning  v.  Oil  and  T.  Co.,  3  Disn. 
.361 ;  Eiselman  v.  Thill,  1  C.  S.  C.  R. 
188. 

2  Dickson  v.  State.  39  O.  S.  75. 
^Kaderabek  v.  Kaderabek,  3  O.  C. 

C.  419 ;  Rapalje  on  Contempt,  sec.  36. 

t  Schultz  V.  State,  33  O.  S.  376. 

•^Newman's  Case,  1  W.  L.  J.  168. 

6  R.  S.,  sec.  5397. 

'  State  V.  Darby,  17  W.  L.  B.  63 ; 
Ex  parte  Dement,  53  Ala.  389 :  Peo- 
ple V.  Montgomery,  13  Abb.  Pr. 
(N.  S.)  207 ;  Buchanan  v.  State,  25 
Am.  Rep.  620. 

8  R.  S.,  sec.  5556. 


9  R.  S.,  sec.  5593. 

10  R.  S.,  sec.  5581. 

11  Union  Bank  v.  Bank,  6  O.  S.  255 : 
See  Edgarton  v.  Hanna,  11  O.  S.  333; 
McClelland  v.  Bishop,  42  O.  S.  113. 

12  Baldwin  v.  State,  11  O.  S.  681. 

13  Richards  v.  People,  81  111.  551; 
Read  v.  Brayton,  35  TST.  Y.  S.  186 ; 
Noe  V.  Gibson,  7  Paige,  513. 

1*  Steele  v.  Sturges,  5  Abb.  Pr.  443; 
In  re  Berry,  36  Barb.  55 ;  Hazelrigg 
V.  Bronbaugh,  78  Ky.  63 ;  Storm  v. 
Waddell,  2  Sandf.  494;  Wilson  v. 
Allen,  6  Barb.  542 ;  Maynard  v.  Bond, 
67  Mo.  315. 


§,§  •l-<Jj  427. J  CONTEMPT.  395 

tervenes,  cannot  assume  control  of  the  property,  even  though 
l>e  perfects  his  appointment  first,  and  any  interference  by  him 
will  be  in  contempt.^  In  fact,  all  parties  implicated  in  a  pro- 
ceeding for  the  appointment  of  another  receiver  under  such 
circumstances  are  amenable  to  the  court.  There  is  no  im- 
munity for  counsel  who  advise  or  through  whose  instrumen- 
tality and  professional  aid  the  same  is  prosecuted.^  It  is  not 
considered  essential  that  a  person  be  officially  apprised  of  a 
receiver's  appointment  to  render  him  liable  for  contempt,  but 
actual  knowledge  of  the  granting  of  an  order  is  sufficient  to 
fix  the  responsibility."  It  will  be  adequate  notice  to  fix  the 
liability  if  a  person  in  court  informs  another  of  the  order 
made;*  and  it  is  immaterial  whether  the  order  has  actually 
been  drawn  or  not,  so  long  as  parties  have  knowledge  that  it 
is  made.^  These  principles  are  applicable  to  all  orders,  such 
as  injunction  and  the  like. 

Sec.  426.  What  contempts  may  be  punished  summarily. 
A  court  or  judge  at  chambers  may  punish  summarily  a  per- 
son guilty  of  misbehavior  in  the  presence  of  or  so  near  the 
court  or  judge  as  to  obstruct  the  administration  of  justice." 
Constitutional  courts,  however,  are  possessed  of  an  inherent 
power  to  punish  summarily  persons  guilty  of  direct  or  con- 
structive contempts  of  court,  independently  of  statute.  The 
statute  is  declaratory  of  the  common  law  on  the  subject  of 
contempts,  and  hence  a  court  may  punish  one  who  assaults  an 
officer  of  court,  as  the  prosecuting  attorney,  during  the  prog- 
ress of  a  trial,  even  though  it  occurs  during  a  recess  and  out- 
side the  court  room.^ 

Sec.  427.  Charge  in  proceedings  lor  contempt  — How 
made. —  Strictly  speaking  there  are  no  pleadings  in  pro- 
ceedings for  contempt,  and  hence  it  is  immaterial  whether 

1  Spinning  v.  Insurance  Co.,  2  Disn,  *  Hull  v.  Heed,  3  Edvv.  Ch.  236. 

336;  People  v.  Bank,  53  Barb.  412;  5  High  on  Receivers,  sec.  166. 

S.  C,  35  How.  Pr.  428.    See  Pugli  v.  e  r.  s.,  sec.  5639. 

Brown.  19  O.  202.  "State  v.  Steube,  19  W.  L.  B.  181; 

-  Spinning  v.  Insurance  Co.,  2  Disn.  State  v.  Myers,  19  W.  L.  B.  302.    See, 

336,  Gholson,  J.,  on  page  345,  etc.;  also,   article    in    23  W.   L.   B.    143; 

High  on  Receivers,  sec.  51 ;  Mahoney  United  States   v.  Patterson,  26  Fed. 

V.  Behnont,  G2  N.  Y.  133.  Rep.    511;  In   re   Dandridge,   2  Va. 

3  Allen  V.  State,  61  Ga.  166 ;  Lewis  Cases,  408. 
V.  Singleton,  01  Ga.  104. 


396  C(1NTEMPT.  [g  428.. 

the  charge  be  sworn  to  or  not,  although  the  practice  in  some 
jurisdictions  may  require  affidavits.^  The  proceeding  must 
be  conducted  in  the  name  of  the  state  and  partakes  of  the 
nature  of  a  prosecution.^  The  charge  must  be  reduced  to 
writing  and  the  accused  given  an  opportunity  to  be  heard  in 
his  defense,^  although  it  has  been  considered  doubtful  whether 
any  complaint  is  in  fact  necessary,*  which,'  however,  has 
special  reference  to  a  formal  pleading,  as  it  is  essential  that  a. 
written  charge  be  made  and  filed  with  the  clerk. 

The  course  pursued  to  institute  proceedings  in  contempt  is 
to  verbally  call  the  attention  of  the  court  to  the  alleged  con- 
tempt, and  ask  that  an  order  be  made  appointing  counsel  to 
file  charges,  which  may  be  as  follows : 

State  of  Ohio  ) 
vs.  V. 

Philip  Koe.    ) 

Information  having  been  brought  to  the  court  of  an  alleged 

violation  of  an  order  made  on  the  day  of ,  18— 

[state  nature  of  order]  [or,  if  contempt  he  one  other  than  a  lilo- 
lation  of  an  order  it  may  he  'varied  to  suit] ;  it  is  therefore 
ordered  that  A.  B.,  an  attorney  of  this  court,  be  and  he  is 
hereby  appointed  and  instructed  to  prepare  and  prefer,  in 
writing,  a])pro|)riate  charges  of  contempt  of  this  court,  chiimed 
to  have  been  committed  "by  the  said  Philip  Eoe,  and  file  the 
same  in  this  court  on  or  before . 

Illustrations  of  charges  are  given  in  the  next  sections,  fol- 
lowed by  subsequent  proceedings. 

Sec.  428.  Charge  of  contempt  for  assaulting  officer. — 

This  day  came  J.  T.  II.,  one  of  the  attorneys  of  said  court, 
specially  appointed  by  the  court  herein  to  tile  and  prosecute 
a  charge  of  contempt  against  the  defendant  F.  S.,  and  com- 
plains to  the  court  that  on  the day  of ,18 — ,  said 

defendant  F.  S.,  one  of  the  witnesses  for  the  defendant  in 

the  case  of against ,  then  pending  and  still  on  trial 

in  this  court,  during  a  recess  in  said  trial  at ,  within  said 

county  of  ,  and  state  of  Ohio,  unlawfully  and  wrong- 
fully assaulted,  struck,  wounded  and  thereby  disabled  from 

proceeding  wi:h  the  trial  of  said  cause  of against  — ^ — , 

one  C.  H.,  the  duly  elected,  qualified  and  acting  prosecuting 
attorney  within  and  for  said  county  and  one  of  the  officers  of 
this  court,  theretofore  and  then  engaged  in  conducting  the 
trial  of  said  cause  on  behalf  of  the  state  of  Ohio,  said  assault, 

1  Steube  v.  State.  3  O.  C.  C.  384.  »  Lowe  v.  State,  9  O.  S.  338. 

2  State  V.  Cleaieus,  6  W.  L.  J.  538.        *  Stoube  v.  State,  3  O.  C.  C.  384 


§429.]  CONTEMPT.  397 

striking,  woundins'  and  disabling  of  said  C.  11.  being  so  made 
and  done  by  said  F.  S.  in  the  presence  of  the  coifrt,  with  the 
intent  and  thereby  to  obstruct  the  administration  of  justice 
in  said  cause.  Said  F.  S.  was  then  and  thereby  guilty  of  ob- 
structing the  administration  of  justice  and  of  contempt  of  this 
court,  contrary  to  the  statute  in  such  case  made  and  provided. 

Sec.   429.    Information   cliargina:   contempt   iu  writing 
scnrrilons  articles  in  newspaper. — 
The  State  of  Ohio  ) 
vs.  [ 

A.  B.  i 

In  obedience  to  the  order  of  this  court,  the  state  of  Ohio, 
by  J.  T.  II.,  T.  P.  L.  and  J.  H.  C,  members  of  the  bar  ap- 
pointed by  the  court  for  that  purpose,  charges  and  states  that 

on  the  day  of  ,  18 — ,  in  the  presence  of  the  said 

court  of  common  pleas  of  said county,  and  state  of  Ohio, 

A.  O.  M.  was  guilt}^  of  misbehavior  and  contempt  of  court,  in 
this,  to  wit: 

That  said  court  was  on  said  day  and  had  been  from  on  or 

about  the day  of ,  18 — ,  next  preceding,  engaged  in 

the  trial  of  the  case  of  v. ujion  an  indictment  for 

,  which  said  indictment  was  duly  found  and  returned  at  a 

former  term  of  said  court  by  a  grand  jury,  duly  drawn,  sum- 
moned, impaneled  and  sworn  to  inquire  into  said  offense  and 
others  within  the  body  of  said  county  [o?'  if  civil  case^  state 
the  oiature]. 

That  at  the  time  said  special  grand  jury  was  ordered,  drawn, 
summoned,  im])aueled  and  sworn,  the  Hon.  D.  F.  P.  was  one 
of  the  judges  of  said  court;  that  one  C.  II.  was  the  prosecut- 
ing attorney  of  said  county,  and  that  one  J.  J.  J.  was  the 
clerk  of  said  court. 

That  the  said  Hon.  D.  F.  P.  was,  on  the  day  of , 

18 — ,  the  judge  of  said  court  sitting  in  the  trial  of  said  case  of 

the  State  of  Ohio  against  ;  that  said  C.  H.  was  on  said 

day  the  prosecuting  attorney  of  said  county  engaged  in  the 
trial  of  said  case  in  behalf  of  the  state  of  Ohio;  and  one 
G.  X.  ]^.  was  on  said  day  a  duly  admitted  and  practicing 
member  of  the  bar  of  said  state,  and  as  an  officer  of  said  court 
was  engaged  for  the  state  in  the  trial  of  said  case. 

That  on  the  said day  of ,  18 — ,  said  A.  O.  M.,  to 

vilify,  degrade  and  defame  said  court  and  its  said  several  offi- 
cers,' to  wit,  D.  F.  P.,  C.  IL,  G.  K.  X.  and  J.  J.  J.,  and  the 
grand  jurors  who  found  and  presented  said  indictment,  and  to 
bring  the  said  court  and  its  said  officers  into  contempt,  and 
to  obstruct  the  administration  of  justice  in  said  cause  thereto- 
fore, then  and  still  pending  and  on  trial  in  said  court,  did 
write  and  publish,  and  cause  to  be  published  in  the  0.  E.,  a 
newspaper  printed  at  the  city  of  C,  in  the  county  of  , 


39S 


CONTEMPT. 


[§  430. 


and  state  of  Ohio,  and  caused  to  be  published  and  circulated 
throughout  said  state  and  in  the  said  county  of  F.,  in  the 
presence  of  the  said  court,  a  certain  libelous,  false  and  mali- 
cious article,  a  copy  of  which  is  as  follows,  to  wit:  \_Insert 
copy  of  article.'] 

That  said  Hon.  D.  F.  P.,  the  judge  of  said  court,  on  said 
dav  of ,  18 — ,  is  the  person  referred  to  in  said  arti- 
cle as  "  D.  P." 

That  the  said  C.  H.,  the  said  prosecuting  attorney  on  said 
day,  is  the  person  referred  to  in  said  article  as  "  C.  W.  H." 

That  the  said  J.  J.  J.,  clerk  of  said  court  at  the  time  said 
grand  jury  was  drawn  and  impaneled,  is  the  person  referred 
to  in  said  article  as  "  the  clerk." 

That  said  G.  K.  X.  was  on  the  said day  of ,  18 — , 

an  officer  of  said  court,  as  aforesaid. 

"Wherefore  said  A.  O.  M.  is  guilty  of  contempt  of  said  court, 
contrary  to  the  laws  of  the  land. 

Note.—  From  Myers  v.  State,  46  O.  S.  473. 

Sec.  430.  Proceedings  upon  filing  of  charge. — 

Upon  the  filing  of  the  charge  by  counsel  appointed  for  that 

purpose,  the  following  entry  should  be  made: 

State  of  Ohio  ) 

vs.  V 

Philip  Koe.    ) 

This  day  came  A.  B.,  heretofore  appointed  by  this  court  to 
prepare  and  prefer  a  charge  of  contempt  against  the  said 
Philip  Roe,  and  on  behalf  of  the  state  of  Ohio,  and  in  pursu- 
ance of  said  order  of  court,  filed  written  charges  of  contempt 
of  this  court  against  the  said  Philip  Roe  for  a  violation  of 
[state  whatever  order  may  he']. 

It  is  therefore  ordered  by  the  court,  that  a  copy  of  said 
charge  of  contempt  be  forthwith  served  upon  the  said  Philip 
Roe,  together  with  a  copy  of  this  order,  and  that  he  be  re- 
quired to  file  his  written  answer  to  said  charge  of  contempt 

on  or  before  the day  of ,  18 — ,  and  that  he  appear 

before  this  court  on  the day  of ,  18 — ,  at o'clock 

—  M.,  ready  to  answer  said  charge  so  made  against  him. 

As  clerks  are  not  usually  supplied  with  blanks  covering 
this  proceeding,  counsel  should  assist  in  the  preparation  of 
the  order  to  be  served  on  the  defendant,  which  may  be  as 
follows : 


Proceedings  in  contempt. 


SUMMONS    IN   CONTEMPT. 


To 


Sheriff: 


Whereas  on  the 


day  of 


18 — ,  A.  B.,  an  attorney 


of  this  court,  under  an  order  of  this  court,  in  the  name  of  the 
state  of  Ohio,  filed  a  written  charge  of  contempt  of  court. 


§  431.J  COiNTEMl'T.  899 

alleged  to  have  been  coramitted  by  the  said  Philip  Roe,  which 
is  as  follows:  \The  written  charye  may  lyroperlij  he  inserted 
here.'] 

And  whereas  said  court  of  common  pleas  did  on  the 

day  of ,  IS — ,  make  an  order,  of  which  the  following  is  a 

copy:  {Copy  of  order^ 

You  are  therefore  commanded  to  forthwith  serve  a  copy 
of  this  writ  on  the  said  Philip  Roe,  and  the  said  Philip  Roe  is 
hereby  required  to  file  his  written  answer  to  said  charge  as 

required  by  said  order,  on  or  before  the  da}^  of , 

IS — ,  and  that  he  be  and  appear  before  this  court  on  the 

day  of ,  18 — ,  at o'clock  —  M.,  ready  to  answer  said 

charge. 

You  will  make  due  return  of  this  writ  forthwith  upon  its 
execution. 

In  witness  whereof,  etc. 

A  day  or  time  should  be  fixed  for  filing  an  answer  by 
the  person  charged  before  the  day  fixed  for  the  hearing,  as 
it  will  thus  necessarily  save  delay,  It  may  also  be  necessary 
for  counsel  appointed  b}'"  the  court  to  file  a  reply  to  the  an- 
swer of  the  accused,  which  may  be  done  by  the  time  fixed  for 
the  hearing.  While  the  proceedings  are  in  their  nature  crim- 
inal, the  pleadings  are  sabstantially  as  in  civil  cases,  and  it 
may  be  necessary  to  raise  an  issue  —  at  least  it  is  best  to  do  so 
in  the  manner  indicated. 

If  the  nature  of  the  contempt  is  such  that  it  may  seem  neces- 
sary to  arrest  the  person  charged,  the  foregoing  forms  may  be 
varied.^ 

Sec.  431.  Tlie  hearing. —  The  person  accused  must  be  given 
an  opportunity  to  be  heard  by  himself  or  counsel,^  and  a  day 
shall  be  fixed  for  his  presence  to  answer  the  charge,'  at  which 
time  the  court  shall  proceed  to  investigate  the  charge,  and  to 
hear  any  answer  or  testimony  which  the  accused  may  make 
or  offer.*  The  hearing  is  conducted  as  an  ordinary  case,  ex- 
cept that  it  is  before  the  court  whose  order  it  is  claimed  has 
been  violated.  The  person  charged  does  not  have  the  right 
to  a  trial  by  jury.'^  It  must  be  before  the  court  in  regular 
session,  and  not  before  a  judge  or  judges  sitting  at  chambers." 

1  See  Yaple's  Pldg.,  pp.  1158-59.  *  R.  S.,  sec.  5644. 

2R  S.,  sec.  5641.  5  Amnion  v.  Johnson,  3  O.  C.  C.  263. 

»  R.  S.,  sec.  5642.  6  Davis  v.  State  ex  rel.,  50  O.  S.  li>4. 


CHAPTER  28. 


CONTRACTS. 


Sec.  433.  Actions  on  contracts  —  The 
petition. 
433.  Consideration. 
434  Conditions  in  contracts. 

435.  Assigning  breaches. 

436.  Judgment  where  several  lia- 

ble. 

437.  Entire  contract 

438.  General  rules. 

439.  Actions    on    building    con- 

tract. 

440.  Petition  for  breach  of  build- 

ing contract. 

441.  Petition  for  recovery  of  con- 

tract price. 

442.  Petition  against  contractor 

for  failure  to  complete. 

443.  Petition  on    building    con- 

tract bj'  assignee. 

444.  Answer   setting  up  failure 

to  procure  architect's  cer- 
tificate. 

445.  Illegal  contracts. 

446.  Petition    upon    contract  — 

Skeleton  form. 

447.  Petition  on  contract  for  sale 

of  goods,  the  proceeds  of 
which  are  to  be  aiDplied  by 


vendee  in  liquidation  of 
indebtedness  of  insolvent 
vendor ;  and  for  recovery 
of  balance  after  payment 
of  debts. 
Sec.  448.  Petition  for  breach  of  verbal 
contract  of  sale. 

449.  Petition  for  breach  of  con- 

tract for  sale  of  patent- 
right 

450.  Petition  on  contract  for  as- 

signment of  letters  patent, 
for  recovery  of  profits  de- 
rived from  manufacture 
aud  sale  of  commodities. 

451.  Petition  for  breach  of  con- 
tract for  delivery  of 
goods. 

452.  Petition  for  faihire  to  de- 
liver goods  as  per  contract 

453.  Defenses  to  actions  on  con- 
tract —  The  answer. 

454.  Tender  aud  offer  in  actions 
on  contracts. 

455.  Answer  that  good^  were  not 
delivered  becnuse  of  in- 
solvency of  vendee  after 
making  contract. 


Sec.  43-2.  Actions  on  contracts  —  The  petition.— A  peti- 
tion which  alleges  the  execution  of  a  contract,  and  specifically 
sets  forth  the  conditions  and  covenants  to  be  kept  and  per- 
formed, and  avers  that  the  same  have  been  violated,  stating  the 
amount  of  damages  sustained,  with  a  prayer  for  judgment, 
contains  the  essential  elements  of  an  action  upon  a  contract. • 
It  may  not  always  be  necessary  to  give  the  full  details,  but  it 

1  Wolfe  V.  Scliofield,  38  Ind.  175 ;  Westbrook  v.  Schmaus,  33  Pac.  Rep.  306 ; 
51  Kan.  214  (1893). 


§432.]  CONTKACTS.  401 

will  be  sufficient  to  substantially  allege  the  terms  of  a  con- 
tract ;  ^  in  any  event,  it  is  only  essential  to  allege  such  facts  as 
are  material  to  plaintiff's  cause  of  action.^  And  where  a  con- 
tract consists  of  an  agreement  to  do  several  things,  the  con- 
ditions, stipulations  and  consideration  as  to  all  should  be  set 
forth.^  An  allegation  that  the  defendant  agreed  to  do  a  cer- 
tain thing  should  be  taken  to  mean  that  he  agreed  in  a  valid 
and  legal  manner.'* 

The  character  of  contracts  discussed  in  this  chapter  are  not 
those  for  the  unconditional  payment  of  money  only,  which  are 
generally  negotiable  instruments,  but  may  include  those  falling 
under  section  5085  of  the  code  as  evidences  of  indebtedness,  a 
copy  of  which  must  be  attached  to  the  petition.  It  is  not  neces- 
sary to  here  repeat  what  has  been  before  stated  that  the 
copy  attached  cannot  be  made  to  supply  the  necessary  aver- 
ments in  the  petition.*  But  the  substance  of  such  contracts, 
or  even  a  copy  when  the  same  relates  solely  to  the  case,  and 
contains  all  the  facts  which  seem  necessary  to  state  the  cause 
of  action,  must  be  given  in  the  pleading.  As  to  all  other 
classes  of  contracts  which  are  not  "  evidence  of  indebtedness," 
this  rule  is  inapplicable,  as  it  would  burden  the  record  and 
increase  the  costs.  Hence,  it  is  not  generally  considered  good 
pleading  to  incorporate  a  copy  of  such  contracts  in  the  plead- 
ing. It  may  often  become  necessary,  however,  in  assign- 
ing breaches,  to  substantially  set  out  the  whole  contract,  in 
which  case  it  may  be  convenient  to  copy  the  same  into  the 
pleading."  The  better  course  to  be  adopted  must  necessarily 
depend  upon  the  extent  and  nature  of  the  contract,  and  the 
matters  complained  of,  which  rest  largely  in  the  discretion  and 
good  judgment  of  the  pleader.  Either  a  copy  or  the  substance 
of  the  provisions  should  be  inserted.'  In  Indiana  it  is  con- 
sidered sufficient  to  annex  a  copy  to  the  petition  and  aver 
that  a  contract  was  dul}'"  executed.^    Some  other  states  adopt 

1  Logan    V.  Apartment   House,    3        6  Swan's   Pklg.,  pp.    198-9 ;  Craw- 
Misc.  Rep.  296  (N.  Y.  Com.  PI.,  1893).     ford  v.  Satterfield,  27  O.  S.  425;  Mc- 

2  Rollins  V.  Lumber  Co.,  21  Minn.  5.     Campbell  v.  Vastiue,  10  la.  538. 
•Detroit,  etc.  R.  R  v.  Forbes,  30        7 slack  v.   Heatli,  1  Abb.   Pr.  381? 

Mich.  165.  Stoddard  v.  Treadwell,  26  Cal.  294; 

*  Jenkinson  v.  Vermillion,  52  N.  W.  Fairbanks  v.  Bloomfield.  2  Duei-,  349. 

Rep.  1066  (S.  D.,  1892).  sstraughan  v.    Fairchild,   80  Ind. 

5  Ante,  sees.  57,  347.  598 ;  Whitworth  v.  Malcom,  82  Ind. 
26 


402 


CONTKACTS. 


L§§  433,  434. 


the  same  practice,  but  this  does  not  apply  to  Ohio.  In  plead- 
ing a  contract  partly  oral  and  partly  written  it  will  be  suffi- 
cient to  plead  the  general  effect  thereof  without  giving  a  copy.' 

Sec.  433.  Consideration. —  It  is  a  general  rule  that  a  con- 
tract in  writing  is  supjiorted  by  a  valid  consideration,  and 
therefore  it  is  not  necessary  to  allege  the  fact  that  it  was 
made  upon  a  consideration.^  A  different  rule,  however,  pre- 
vails as  to  a  verbal  contract,  in  which  case  it  is  held  to  be 
essential  to  plead  the  consideration  on  which  it  is  based.'  The 
practice,  however,  in  all  cases  is  to  aver  consideration,  which 
is  commendable.  The  law  does  not  look  into  the  question  of 
adequacy  of  consideration  but  will  leave  that  to  the  parties.* 

Sec.  434.  Conditions  in  contract. —  The  rule  of  pleading 
conditions  has  been  fully  discussed  elsewhere  in  a  general 
way.^  Before  a  person  can  recover  on  a  contract  he  must 
show  that  he  has  complied  with  all  its  terms  and  conditions 
on  his  part  to  be  performed.^  The  rules  of  common-law  plead- 
ing required  that  the  facts  showing  the  performance  of  condi- 
tions precedent  be  set  out  in  detail,  and  was  a  subject  attended 
with  much  difficulty  which  the  code  was  intended  to  obviate;'' 
AVhen,  therefore,  a  demand  of  performance  is  necessary  to  fix 
the  liabilit}^  of  a  party  to  a  contract,  it  will  be  sufficient  to 
aver  generally  that  the  plaintiff  has  performed  all  the  condi- 
tions on  his  part.^  An  allegation,  however,  that  a  contract 
"  has  been  a  valid  and  subsisting  one  ever  since  the  date  of 
its  execution,  and  is  still  valid  and  subsisting  and  binding  on 
said  plaintiff,"  is  not  a  sufficient  averment  of  performance.^ 

If  the  facts  pleaded  show  a  repudiation  of  a  contract  by  the 


454;  Insurance  Co.  v.  Hazelett,  105 
Ind.  212.  A  verbal  contract  does  not 
of  course  fall  within  the  rule  requir- 
ing a  copy  to  be  made  part  of  the 
petition.  Hydraulic  Co.  v.  Wilson, 
33  N.  E.  Rep.  113  (Ind.,  1893). 

1  Board,  etc.  v.  :Miller,  87  Ind.  257 ; 
Board  v.  Shipley,  77  Ind.  553 ;  Rail- 
way V.  Wray,  52  Ind.  578. 

2  See  cases  cited  po«f,  sec.  453 ; 
Williams  v.  Hall,  79  Cal.  606. 

i  Acheson  v.  Telegraph  Co.,  96  Cal. 
641 ;  31  Pac.  Rep.  583  (1892).  Where 
the  coiinnon-lau-  rule   has  not  bpen 


abrogated  by  statute,  consideration 
must  be  brief!}'  alleged.  1  Parsons 
on  Contracts  (5th  ed.),  427,  428. 

■^  Judy  V.  Louderaian,  48  O.  S.  562 ; 
Pilkington  v.  Scott,  15  M.  &  W.  657. 

^Ante,  sec.  59. 

6  lasigi  V.  Rosenstein,  20  N.  Y.  S. 
491. 

'  R.  S.,  sec.  5091. 

8  Humphreys  v.  Staley,  3  W.  L.  M. 
628. 

9  Lowe  V.  Phillips,  14  O.  S.  308; 
Crawford  v.  Satterfield,  27  O.  S.  424 


1 


§  435.]  CONTRACTS,  4o3 

defendant,  it  will  be  necessary  to  aver  performance  or  readi- 
ness to  ))erforin.^  An  averment  that  plaintiff  is  ready  and 
willing  to  accept  property  and  make  payment  therefor  can- 
not be  construed  to  be  an  allegation  of  payment  or  of  an  offer 
to  pay.-  x\.n  allegation  of  readiness  to  perform  is  not  neces- 
sary where  the  pleading  shows  that  a  defendant  has,  without 
sufficient  cause,  announced  that  he  will  no  longer  perform  his 
part  of  a  contract.'^ 

§  435.  Assisj;iiiu!^  breaches. —  A  pleading  which  fails  to 
allege  a  breach  of  contract  is  bad  upon  demurrer,''  and  in  as- 
signing the  same  it  is  essential  that  all  facts  constituting  the 
breach  be  alleged,^  which  should  be  in  unequivocal  language 
and  not  left  to  inference.^  The  practice  generally  followed 
is  to  assign  the  breach  in  the  w^ords  of  the  contract.'^  "Where 
a  contract  is  made  to  do  a  certain  thing  and  the  party  pre- 
sents himself  in  readiness  to  perform  the  same,  and  is  di- 
rected to  do  another  and  different  thing,  he  may  consider  it  a 
breach  and  maintain  an  action  at  once.^  If  a  contract  has 
been  repudiated  by  one  of  the  parties  before  the  time  for  its 
performance  has  arrived,  the  other  party  must  show  full  com- 
pliance with  conditions  precedent  before  he  can  maintain  an 
action  thereon,**  as  one  who  has  not  complied  with  his  part  of 
the  contract  cannot  call  upon  the  other  to  respond  in  dara- 
ages.^'^  Xor  will  a  breach  by  one  party  give  the  other  a  right 
to  go  on  and  perform  so  much  of  tlie  conti'act  as  he  may  see 
fit,  and  recover  therefor,  without  regard  to  tlie  price  paid ;  ^^ 

1  Riley  V.  Walker,  34  N.  E.  Rep.  100  v.  Champlin,  66  N.  Y.  214.     It  will 
(Ind.  App.,  1893).  be  sufficient  to  aver  the  contract,  the 

2  Bailey   v.  Lay,  33  Pac.  Rep.  407  breach  complaioed  of,  and   general 
(Colo.,  1893).  damages.    Bearber  v.  Cozalis.  30  Cal. 

3  Riley  V.  Walker.  34  N.  E.  Rep.  100  93. 

(Tnd.  App.,  1893\  "  Jones  v.  Sales,  25  la.  25  ;  Brown 

■iRich  V.  Calhoun,  12  So.  Rep.  707  v.  Stebbins,  4  Hill,  154;  Gutridge  v. 

(Miss.,  1893) ;  Phipps  v.  Hope,  17  O.  S.  Vanatta,  27  O.  S.  366. 

58G.  8  Campbell    v.  Jimeues,  23    N.  Y. 

5  Branbani  v.  Johnson,  63  Ind.  259 ;  Supp.  313. 
Moore  v.  Besse,  30  Cal.  570;  Ward  v.  9  ^^Isas  v.  Meyer,  21   W.  L.  B.  346; 
Hogan.  11  Abb.  N.  C.  478;  Marie  v.  Neale  v.  Ratliff,  15  Q.  B.  916;  Hick- 
Garrison,  13  J.  &  S.  157.     A  breach  man  v.  Royle,  55  lud.  551.     See  9  W. 
may  sometimes  be  set  forth  in  a  gen-  L.  B.  131. 

eral   way.     Rowland    v.    Phalen,    1  '^  Tufts  v.  Saus,  47  Mo.  App.  487. 

Bosw.  43.  11  JIcGregor  v.  Ross,  96  Mich.  103 ; 

fi  Moore  v  Besse,  30  Cal.  560 ;  Brown  55  N.  W.  Rep.  658  (Mich.,  1893). 


404 


CONTKAOTS. 


[^g  430,  437. 


but  where  one  party  to  a  contract,  without  fault  on  the  part 
of  the  other,  fails  to  perform  his  part  so  as  to  enable  him  to 
sue,  he  may  nevertheless  recover  for  the  benefit  derived  by 
the  other  party,  less  any  damages  sustained  by  partial  non- 
performance.^ 

Sec.  436.  Judgment  where  several  liable.— The  common- 
law  rule  that  recovery  must  be  had  against  any  or  all  parties 
to  a  joint  contract  was  modified  by  the  code  so  as  to  allow 
judgment  to  be  entered  for  or  against  one  or  more  of  several 
defendants  who  are  liable  in  a  joint  action,  without  subjecting 
the  plaintiff  to  the  necessity  of  bringing  a  new  action ;  and  a 
judgment  rendered  for  those  who  are  found  not  liable  and 
ao-ainst  those  liable.-  If  there  be  doubt  as  to  the  face  of  such 
judgment,  it  would  be  proper  to  make  an  amendment.'  Judg- 
ment ma}'-,  in  the  discretion  of  the  court,  be  taken  against  one 
or  more,  leaving  the  action  to  proceed  against  others,  which 
will  operate  as  a  severance  of  the  cause  of  action  as  to  the  re- 
mainder, which  may  be  heard  and  determined  as  if  they  were 
sued  alone,  and  judgment  rendered  against  them  for  the  whole 
or  part  of  the  cause  of  action  as  may  be  proved  against  them.* 

Sec.  437.  Entire  contract.— Where  a  contract  is  entire 
and  is  abandoned  after  part  performance  without  cause,  there 
can  be  no  recovery  even  yro  tcmto  unless  the  assent  of  the 
other  party  to  the  abandonment  be  shown.'  Accommodation 
indorsement  is  an  entire  contract  and  cannot  be  tilled  up  so 
as  to  make  the  note  payable  part  to  one  person  and  part  to 
another.^  A  judgment  on  an  entire  contract  which  has  been 
severed  merges  the  whole,^  and  the  right  is  exhausted  by  a 
single  suit.^     Where  there  has  been  a  part  delivery  of  goods 


1  Lyon  Co.  v.  Lund,  33  Pac.  Rep. 
595  (Kan.,  1893).  See,  also,  Branham 
V.  Johnson,  62  Ind.  259-68. 

2  Lampkin  v.  Chisom,  10  O.  S.  450 ; 
Brumskill  v.  James,  1  Kern.  294; 
Marquat  v.  Marquat,  2  Kern.  336. 

3  Lampkin  v.  Chisom,  .supra. 

4  O.  Code,  sees.  5311-12;  Hempy  v. 
Ranson,  33  O.  S.  319;  Aucker  v. 
Adams,  23  O.  S.  543;  Roby  v.  Raius- 
berger,  26  O.  S.  676 ;  Stafford  v.  Nutt. 


51  Ind.  535 ;  Hnbbell  v.  Wolfe,  15  Ind. 
204;  Carr  v.  Beckett,  1  O.  C.  C.  72, 

5  Allen  T.  Carles,  6  O.  S.  505;  Gold- 
smith V.  Hand,  26  O.  S.  101-4. 

sErwin  v.  Lynn,  16  O,  S,  539. 

7  Erwiu  V,  Lynn,  supra. 

8  Stein  V.  Steamboat,  17  O.  S.  471-5 ; 
Benderuagle  v.  Cocks,  19  Wend.  207 : 
Fish  V,  Tolley,  6  Hill,  54;  Secor  v. 
Sturges,  6  N.  Y,  548;  Logan  v.  Cof- 
frey.  30  Pa.  St.  196. 


§  438.]  CONTKACTS.  405 

sold,  recovery  cannot  be  had  for  their  value  without  delivery 
of  all.^  The  giving  of  a  note  will  sometimes  amount  to  a 
severance  of  an  entire  contract ;- and  where  a  tripartite  has 
been.entered  into,  and  two  of  the  three  parties  fail  to  per- 
form their  respective  portion,  they  may  be  compelled  to  per- 
form or  pay  damages  at  the  suit  of  a  third  party  who  performs 
or  tenders  performance.^ 

Sec.  438.  General  rules. — Although  recovery  cannot  be 
had  on  a  verbal  contract  not  to  be  performed  within  one  year, 
it  is  otherwise  if  the  same  has  been  partially  performed.* 
Proof  of  alteration  or  interlineation  in  a  contract  cannot  be 
introduced  unless  the  same  be  alleged  in  the  pleading; '"  and  so 
with  an  oral  modification  of  a  written  contract.^  Where  a 
contract  sued  upon  depends  upon  the  terms  of  another,  the 
provisions  of  the  latter  must  be  set  forth  in  the  pleading; '  and 
in  framing  a  pleading  upon  an  implied  contract,  it  is  necessary 
only  to  allege  the  facts  showing  the  data  from  which  the  law 
implies  a  promise.^  If  one  person  for  a  good  consideration 
makes  a  j)romise  to  another  for  the  benefit  of  a  third,  such 
third  person  may  maintain  an  action  thereon.^  An  allegation 
of  a  contract  in  the  petition,  not  controverted  by  answer,  will 
be  taken  as  true ;  and  an  averment  of  a  different  contract  in 
the  answer  will  not  amount  to  a  denial.^"  Where  the  facts 
set  forth  clearly  constitute  a  cause  of  action  upon  contract, 
an  allegation  giving  it  the  aspect  of  a  tort  will  be  treated  as 
surplusage  and  will  not  change  the  nature  of  the  action."  So 
where  a  commission  merchant  retains  the  proceeds  of  goods 

1  Witherow  V.  Witherow,  16  O.  238.  9  Thompson  v.  Thompson,  4  O.  S. 

2  See  Loomis  v.  Eagle  Bank,  10  O.  333 ;  Crumbaugh  v.  Kugler,  3  O.  S. 
S.  327.  544 ;  Emmett  v.  Brophy,  42  O.  S.  82 ; 

3  Wade  V.  Pollock,  1  C.  S.  C.  R  453.  Riordan  v.  Church,  23  N.  Y.  Supp. 

4  Tovvsly  V.  Moore,  30  O.  S.  184.  323. 

aShelton   v.   Reynolds,   111   N.   C.  lO  Marx   v.   Gross,  22   N.  Y.   Supp. 

505;  16  S.  K  Rep.  272  (1892).  393;  Fleischman  v.  Stearn,  90  N.  Y. 

«  Henry  v.  Clelland,  14  Johns.  400;  110. 

Sansford  v.  Halsey,  2  Disn.  253.     See  "  Greentree  v.  Rosentock,  61  N.  Y. 

Building  Contract,  sec.  439,  post.  583 ;   Segelken  v.   Meyer,   94  N.  Y. 

» Toole  V.  Baer,  16  S.  R  Rep.  378  484 ;  Conaughty  v.  Nichols,  42  N.  Y. 

(Ga.,  1892).  83 ;  Led  wick  v.  McKim,  53  N.  Y.  307- 

8  Maxwell  on  Code  Pldg.  85,  and  316;  Whereatt  v.  Ellis,  58  Wis.  837.. 
cases  cited:  Farron  v.  Sherwood,  17 
N.  Y.  227. 


40tt  CONTRACTS.  [§  439. 

sold  by  him,  the  action  for  its  recovery  should  be  upon  con- 
tract, and  not  for  commission.'  Where  work  done  under  a 
contract,  though  not  in  strict  accordance  with  its  terms,  is 
accepted  by  or  has  benefited  the  other  party,  a  recovery  may  be 
had  for  what  it  is  really  worth.  And  so  with  one  which  has 
been  waived,  or  where  the  plaintiff  has  been  prevented  from 
doing  the  work.-  In  a  suit  for  work,  labor  and  materials,  it 
is  not  necessary  to  declare  upon  contract,  but  a  declaration 
may  be  made  generally  for  the  value  of  the  work  and  refer- 
ence made  to  the  contract  to  determine  the  value.'  Where 
money  is  claimed  upon  contract  the  petition  must  show  that 
the  same  is  due  and  unpaid.*  An  allegation,  however,  that  a 
sum  sued  for  is  now  due  is  a  mere  conclusion  of  law.*  Where 
the  action  is  for  the  recovery  of  something  more  than  money, 
as  for  damages,  it  is  not  necessary  to  aver  that  the  damages 
are  due  and  unpaid.^ 

Sec.  439.  Actions  on  building  contract. —  The  general 
rule  applicable  to  all  kinds  of  contracts  which  requires  only  a 
substantial  compliance  therewith,  and  excuses  technical,  inad- 
vertent and  unimportant  omissions  and  defects,  is  equally  ap- 
plicable to  building  contracts.  This  rule  allows  a  recoupment 
in  damages  for  any  material  deficiency.''  Slight  defects  in  the 
performance  of  a  building  contract  will  not  prevent  recovery 
of  the  price  therefor,^  If  the  specifications  have  been  disre- 
garded, recovery  may  nevertheless  be  had  for  the  contract 
price,  less  the  cost  of  making  the  building  conform  to  the 
plans.^  Where  work  is  done  under  a  contract  which  is  at  vari- 
ance with  the  strict  terms  of  the  agreement,  and  payments 

1  Greentree  v.  Rosentock,  61   N.  Y.  '  Doyle  v.   Insurance  Co.,  44  Cal. 

583;  Walter  V.  Bennett,  16  N.  Y.  250;  364;  Roberts  v.   Treadwell,  50  Cal. 

Weymouth  v.  Boyer,  1  Ves.  Jr.  416 ;  520 ;  Frisch  v.  C^uler,  21  Cal.  71.     See 

Harris  v.  Schultz.  40  Barb.  315.  ante,  sec.  51. 

-'  Newman  v.  McGregor,  5  O.  352 ;  6  Riiey  v.  Walker,  34  N.  E.  Rep.  100 

Edgertou  v.  Coates,  W.  84 ;  Ames  v.  (Ind.,  1893). 

Sioat,  W.  577 ;  Bagley  v.  Bates,  W.  ^  Elsas  v.  Meyer,  21  W.  L.  B.  348 : 

705;  Sperry  v.  Johnson,  11  O.  452.  Mehurin  v.  Stone,  37  O.  S.  49;  Gold- 

3  Higgins  V.  Railroad  Co.,  66  N.  Y.  smith  v.  Hand,  26  O.  S.  101. 

604 ;  Farron  v.  Sherwood,  17  N.  Y.  »  Horgan  v.  McKenzie,  17  N.  Y.  S. 

227 ;  Fells  v.  Vestvali,  2  Keyes,  152 ;  174 ;  Crouch  v.    Gutman,  31   N.   E. 

Larson  v.  Schmaus,  31  Minn.  413.  Rep.  271  (N.  Y.,  1892),  and  cases  cited. 

1  Goodman  v.  Gordon,  87  Ind.  126;  sScheible  v.  Klein,  89  Mich.  376; 

Boone's  Pldg.,  sees.  26,  135,  150,  104.  50  N.  W.  Rep.  857. 


I 


^  4:39.]  CONTRACTS.  -407 

have  been  made  thereon  during  the  progress  of  the  work 
without  objection,  recovery  may  be  had  for  an  unpaid  bal- 
ance without  showing  that  the  contract  has  been  strictly  per- 
formed.^ Formerly,  where  a  contract  provided  that  work 
was  to  be  subject  to  the  approval  of  an  architect,  there 
could  be  no  recovery  unless  it  was  so  approved ;  but  the  rigor 
of  this  rule  has  been  so  far  relaxed  as  to  allow  recovery  when 
there  has  been  a  substantial  compliance  in  good  faith.^  In 
bringing  an  action  upon  a  contract  it  must  be  averred  that 
the  work  was  approved  by  the  architect,  or  a  reason  given  for 
failure  so  to  do.'  Such  an  allegation  is  unnecessary,  however, 
where  it  is  alleged  that  the  plaintiff  "  performed  each  and 
every  requirement  by  him  contracted,  as  set  forth  in  the  con- 
tract," or  where  a  general  averment  of  performance  of  condi- 
tions precedent  is  made.*  All  of  the  facts  relating  to  the 
performance  and  deviation  from  the  contract  should  be  fully 
set  forth  and  not  alleged  in  a  general  way.  This  cannot  be 
done  in  the  reply  if  inconsistent  with  the  allegations  of  the 
petition.^  Where  a  certificate  has  been  demanded  of  an 
architect  and  the  same  unjustly  refused,  the  condition  of  the 
contract  as  to  the  certificate  of  the  architect  ceases  to  be  a 
condition  precedent  to  recovery.^  A  provision  that  an  archi- 
tect's certificate  for  extra  work  shall  be  final  is  binding^  on 
the  parties.'  A  contractor  may  recover  for  extra  work 
rendered  necessary  by  a  violation  of  an  agreement  by  the 
owner.^  And  where  an  action  is  brouijht  for  defects  in  the 
work  of  constructing  a  building,  the  same  must   be  fully  set 

1  Goldsmith  v.  Hand.  26  O.  S.  101;  5  O'Connor  v.  Diugley.  26  Cal.  11: 
Woodward  v.  Fuller,  80  N.  Y.  312;  Evarts  v.  Smucker,  19  Neb.  41;  26  N. 
Noland  V.  Whitney,  88  N.  Y.  648.  See,  W.  Rep.  596  (1886);  Durbin  v.  Fisk, 
also,   Loeffler  v.    Froelich,  35  Hun,  16  O.  S.  534. 

368 ;  Coon  v.  Water  Co.,  25  Atl.  Rep.  6  Highton  v.   Dessau,  19  N.  Y,   S. 

505  (Pa.,  1893);  Arnold  v.  Bournique,  395;  Thomas  v.   Stewart,  132  N.  Y. 

33  N.  E.  Rep.  530  (III.,  1893).  580;  30  N.  E.  Rep.    577.     Unless  it  is 

2  Kane  V.  Stone,  39  O.  S.  1-11 ;  Me-  provided  in  the  contract  that  the 
liurin  V.  Stone,  37  O.  S.  49.  But  see  estimate  of  an  architect  is  not  bind- 
Aruold  V.  Bournique,  29  W.  L.  B.  156.  ing  on  the  owner.    Schuler  v.  Eckert, 

i  Butler  V.  Tucker,  24  Wend.  447.  51  N.  W.  Rep.  198  (Mich.,  1892). 

The    architect    is    the    sole    arbiter.  "  Anderson  v.  Inihoflf,  34  Neb.  335 ; 

Mercer  v,  Harris,  4  Neb.  73.  51  N.  W.  Rep.  854  (1892). 

'Wilcox  V.  Stephenson,  1  So.  Rep.  **  Becker  v.  National,  etc.  Park  Co., 

G.-.;}  (Fla.,  1892).  69  Hun,  55. 


408  CONTRACTS.  [§§  4-10,  441. 

forth  in  the  pleading.^  Delay  on  the  part  of  the  contractors 
will  not  afford  ground  for  refusal  to  pay  an  instalment  due.* 
A  request  to  stop  work,  if  acquiesced  in  by  both  parties,  will 
not  operate  as  a  breach,  unless  by  way  of  a  direction,  and  objec- 
tion is  made  thereto.^  Where  an  owner  completes  a  building 
after  failure  or  delay  by  the  contractor,  it  is  not  essential  that 
the  plans  and  specifications  be  strictly  adhered  to  merely  for 
the  purpose  of  having  correct  accounts  of  the  cost  of  complet- 
ing the  work.* 

Sec.  440.  Petition  for  breach  of  buildiug  contract. — 

Plaintiff  states  that  on  the  day  of ,  18 — ,  in  con- 
sideration of  S to  be  paid [state  the  jpayments 

if  desired'],  he  entered  into  a  contract  in  writing  with  said 
defendant,  by  virtue  of  which  contract  said  defendant  prom- 
ised and  agreed  to  erect  and  construct  a  certain  dwelling- 
house  on  the  property  of  plaintiff  situate  in  the  city  of  C., 
which  said  contract  contained  a  provision  that  [state  the  sub- 
stance of  the  provision  claimed  to  he  hrohen]. 

That  the  plaintiff  has  fully  performed  his  part  of  said  con- 
tract and  complied  with  all  the  provisions  thereof  so  far  as  he 
is  concerned,  but  that  the  defendant  wholly  failed  and  neg- 
lected to  carry  out  and  complete  his  said  contract,  in  that  he 
[state  hreaches]. 

That  by  reason  of  the  failure  and  neglect  of  said  defendant 
to  so  fully  carry  out  and  perform  his  said  contract  plaintiff 

has  been  damaged  in  the  sum  of  % ,  for  which  sum  with 

interest  from ,  18 — ,  he  asks  judgment. 

Note. —  A  copy  of  the  contract  should  not  be  attached  in  this  case.  It 
would  be  otherwise  if  a  suit  were  for  the  contract  price. 

Sec.  441.  Petition  for  recovery  of  contract  price,  inclnd- 
ing  extra  work. — 

On  the day  of ,  18 — ,  plaintiff  entered  into  a  con- 
tract in  writing  with  the  defendant,  by  virtue  of  which  con- 
tract, and  in  consideration  of  the  sum  of  $ to  be  by  de- 
fendant paid  to  plaintiff  as  hereinafter  set  forth,  he  agreed  to 
erect  and  construct  a  certain  building  for  said  defendant  upon 

his  premises  in  the  city  of  C,  being  lot  ISTo. ,  etc.,  which 

said  building  was  to  be  constructed  in  the  following  manner: 
[Here  state  substance  of  contract.'] 

It  was  provided  by  said  contract  that  said  defendant  should 
pay  said  plaintiff  for  the  construction  of  said  building  as  pro- 

1  Turnbridge  v.  Read,  3  N.  Y.  S.  » McGregor  v.  Ross,  55  N.  W.  Rep. 

908;    Darrah  v.  Gow,  77   Mich.    16;  658  (Mich.,  1893). 

43  N.  W.  Rep.  851  (1889).  ■*  Zimmerman  v.    Gourgensen,   24 

^  Smith  V.  Corn,  3  Misc.  545.  N.  Y.  S.  170. 


§  ■i-A2.j  CONTRACTS.  409 

vided  by  said  contract  and  as  hereinbefore  set  forth,  said  sura 
of  8 in  the  following  manner:  {State  payments!] 

But  plaintiff  avers  that  on  the  day  of ,  18 — ,  it 

became  necessar}^  to  make  certain  material  changes  in  said 

contract,  and  it  was  thereupon,  uj)on  said day  of , 

18 — ,  mutually  and  orally  agreed  between  plaintiff  and  de- 
fendant, that  said  plaintiff  should  do  and  perform  the  follow- 
ing additional  work  not  provided  for  in  said  original  contract : 
{State  the  nature  and  extent  of  additional  work.] 

And  for  said  changes  and  additional  work  so  mutually 
agreed  upon  as  aforesaid  by  and  between  said  plaintiff  and 
defendant,  said  defendant  agreed  and  promised  to  pay  said 

plaintiff  therefor  the  sum  of  $ .     Plaintiff  has  fully  and 

completely  carried  out  his  portion  of  the  contract  as  originally 
made  and  as  modified  as  aforesaid  and  duly  performed  all  re- 
quired of  him  by  virtue  thereof. 

A  copy  of  said  original  written  contract  plaintiff  attaches 
to  his  petition  marked  as  an  exhibit. 

There  is  due  and  owing  plaintiff  from  said  defendant  upon 
said  contract  a  balance  upon  said  original  contract  of  the  sum 

of  $ ,  being  the  instalment  so  agreed  to  be  paid  by 

said  defendant,  and  the  further  sum  of  $ ,  the  amount  so 

agreed  to  be  paid  for  said  extra  work,  aggregating  the  sum 
of  $ ,  for  which,  with  interest,  plaintiff  prays  judgment. 

Note. —  Recovery  may  be  had  for  double  plumbing  where  the  contract 
provides  that  there  shall  be  extra  paj'  for  alterations  or  additions.  JlcSorley 
V.  Prague,  33  N.  E.  Rep.  158  (N.  Y.,  1893).  Recovery  may  be  had  for  extra 
labor  caused  by  neglect  of  the  owner.  Becker  v.  Park  Co.,  23  N.  Y.  Supp. 
380. 

Sec,  442.  Petition  against  contractor  for  failure  to  com- 
plete.— 

{Formal  j^cii't  cis  in  ante^  sec.  Jt-Ji-O.] 

That  the  plaintiff  has  performed  all  the  conditions  of  said 
contract  on  his  part  to  be  performed. 

That  by  the  terms  of  said  agreement  said  building  was  to 

be  finished  and  delivered  to  the  plaintiff  on  the  day  of 

,  18 — ,  whereas  in  fact  said  defendant  wholly  failed  to 

comply  with  his  said  contract  in  this  respect  and  did  not  have 
said  building  completed  until . 

That  relying  on  the  contract  with  said  defendant  to  so  com- 
plete said  building,  plaintiff  did  on  the day  of ,  18 — , 

lease  said  building  to  one  E.  F,  for  the  term  of ;  years,  at 

a  yearly  rent  of dollars,  of  which  the  defendant  was  duly 

notified. 

That  by  reason  of  the  defendant's  failure  to  finish  said 
building  the  i)laintiff  has  been  unable  to  give  said  E.  F.  pos- 
session of  the  same,  and  the  ))laintiff"  has  tiiereby  lost  the 
benefit  of  the  lease.  That  the  i)laintiff  has  sustained  damages 
in  the  sum  of  % . 

{Prayer.] 


410  CONTRACTS.  [§§443-41:5. 

Sec.  443.  Petition  on  bnilding  contract  by  assignee. — 

The  plaintiff,  complaining  of  defendant,  says  that  on  or 

about  the day  of ,  18 — ,  one  A.  S.  made  and  entered 

into  a  certain  contract  with  the  defendant,  who  had  a  contract 
with  the  owner,  for  the  erection  and  construction  of  a  certain 
store  or  block  on  [naming  location]^  in  the  city  of  D.,  by 
which  said  S.  agreed  to  furnish,  dress  and  lay  in  the  whole  of 

the  stone  needed  for  the  said  block,  and  for  the  sura  of  

dollars  each.  Defendant  agreed  to  pay  to  said  S.  and  the 
last  payment  upon    the  last  contract  for  said  stone   work, 

amounting  to dollars,  was  agreed  to  be  paid  to  the  said 

S.  when  the  said  building  was  to  be  finished.  That  said  S. 
went  on  and  furnished  and  laid  all  of  said  stone  work  accord- 
ing to  said  contract,  and  completed  his  said  contract  in  every 

particular.     That  said  building  was  finished  on  the day  of 

,  18 — ;  that  defendant  has  paid  to  said  S.  all  his  said  con- 
tract price,  except  the  sum  of dollars,  being  a  part  of  the 

last  payment  which  fell  due .     That  on  the day  of 

,  18 — ,  said  S.  assigned  to  said  plaintiff  for  a  valuable  con- 
sideration all  his  right,  title  and  interest  in  and  to  his  claim 
against  defendant  for  the  balance  due  him  under  said  contract. 
That  the  plaintiff  is  now  the  owner  of  the  same,  and  that 
there  is  due  and  owing  to  the  plaintiff  from  the  defendant 
thereon,  the  sum  of dollars  with  interest  thereon  from 


Wherefore  plaintiff  prays  for  judgment  against  the  defend- 
ant for  said  sum  of  dollars  with  interest  thereon  from 


Note.—  From  Kaine  v.  Stone  Co.,  39  O.  S.  1. 

Sec.  444.  Answer  of  owner  setting  np  failure  to  procure 
architect's  certificate. — 

\Forinal  parts.'] 

Defendant  states  that  by  the  contract  set  forth  in  plaintiff's 
petition  the  building  therein  contracted  for  was  to  be  com- 
pleted  by ,  18 — ;  and  that  it  was  specially  provided  in 

said  contract  that  said  building  was  not  to  be  accepted  by  de- 
fendant until  the  plaintiff  had  first  obtained  the  certificate  of 
A.  B.,  the  architect,  that  said  building  was  properly  con- 
structed. 

Plaintiff  has  not  obtained  the  certificate  of  the  said  A.  B. 
in  accordance  with  the  terms  of  said  contract. 

Note. —  Tlie  certificate  of  the  architect  is  conclusive  and  cannot  be  con- 
tradicted.    Kennedy  v.  Poor,  25  Atl.  Rep.  119  (Pa.,  1892). 

Sec.  445.  Illegal  contracts. —  It  is  a  well-understood  prin- 
ciple of  law  that  where  parties  to  a  transaction  have  woven 
a  web  of  wrong  or  fraud  around  it,  a  court  will  not  unravel  the 
threads  and  separate  the  good  from  the  bad.    But  where  there. 


§  ^io.]  C0NTKACT8.  411 

are  two  considerations  supporting  a  contract,  one  of  which  is 
lawful,  the  other  lawful,  and  the  one  cannot  be  separated  from 
the  other,  the  contract  will  be  sustained  so  far  as  possible. 
This  cannot  be  done,  however,  where  one  of  two  considera- 
tions is  unlawful,  as  the  whole  consideration  is  the  basis  for 
the  whole  promise,  and  the  parts  are  inseparable.^     Nor  will 
a  court  enforce  an  illegal  contract  while  it  remains  executory 
or  rescind  it  when  executed,'-  but  will  leave  the  parties  to  their 
strict  legal  rights.^    And  where  one  of  two  distinct  considera- 
tions is  void  by  statute,  and  the  other  good,  the  contract  will 
be  held  valid  to  the  extent  of  the  good  consideration,^  espe- 
cially where  the  good  may  be  separated  from  the  bad.*  While 
it  is  true  that  an  illegal  consideration  vitiates  a  contract,  yet 
a  vendee  of  goods  with  knowledge  of  the  illegality  cannot  set 
up  his  own  legal  intent  in  bar  of  an  action  for  the  recovery  of 
purchase-money.^     A  contract  not  to  employ  one's  talent,  in- 
dustry or  capital  in  business  cannot  be  enforced,  as  it  is  in 
restraint  of  trade ; '  though  a  contract  jiartially  in  restraint  of 
trade,  founded  upon  a  valuable  consideration,  may  be  enforced. 
The  pleading  in  such  cases  must  allege  that  the  restraint  is 
partial,  and  that  it  is  supported  by  a  valuable  consideration, 
that  it  is  reasonable  and  not  oppressive,  in  order  to  rebut  the 
presumption  against  its  validity ,8  as  parties  to  a  contract  which 
is  contrary  to  public  policy  can  receive  no  aid  from  a  court  of 
justice.^  A  contract  is  made  where  it  is  delivered,  and  the  law 
of  the  place  of  the  delivery  controls  its  validity. '»   Thus,  a  con- 
tract the  consideration  of  which  is  in  whole  or  in  part  the  sup- 
pression of  a  criminal  prosecution,  is  without  any  legal  efficacy 
whatever."     But  where  a  contract  is  made  in  one  state  and 
completed  in  another,  the  cause  of  action  accrues  in  the  latter 

1  Widoe  V.  Webb,  20  O.  S.  435,  and  8  Lauge  v.  Werk,  3  O.  S.  520. 

authority  cited ;  Hooker  v.  De  Palos,  9  Emery  v,  Ohio  Candle  Co.,  47  O. 

28  O.  S.  251.     See  2  C.  S.  C.  R.  369.  S.  320 ;  11  W.  L.  B.  258 ;  12  w!  L.  B.* 

-  Hooker  v.  De  Palos,  supra;  2  Par-  169 ;  9  W.  L,B.  86. 

sons  on  Contracts,  p.  247.  lO  Baldwin  v.  Harrison,  24  W.  L.  B. 

3Kahn  v.  Walton.  46  O.  S.  195.  27;   s.  c,  5  O  C.  C.  310;   Smith  v. 

*  Doty  V.  Bank.  16  O.  S.  133.  Frame,  3  O.  C.  C.  587;  3  N.  Y.  266; 

5  Thomas  v.  Miles,  3  O.  S.  274.  34   Miss.  181 ;  9  Handy,  42;  7   0.  S.' 

e  Kittle  v.  De  Lamater,  3  Neb.  334 ;  249 ;  25  O.  S.  621-5 :  2  Disn.  9 ;  89  111. 

Smith  V.  Bank.  9  Neb.  31.  225;  4  Allen,  364. 

'Mitchell  V.  Reynolds,  1  Smith's  L.  u  Insurance  Co  v.  Hull,  31  W.  L.  B. 

Cas.  641 :  Lauge  v.  Werk,  2  O.  S.  529.     235  ;  51  O.  S. . 


412  co.NTKAcTS.  [§§  440,  447. 

state;  ^  and  if  it  is  valid  where  made,  it  will  be  enforced  in  an- 
other state,  although  it  is  such  a  contract  as  would  be  prohib- 
ited by  the  laws  of  the  latter  state,  if  it  does  not  contravene 
good  morals  and  is  not  prejudicial  to  public  or  individual 
rights.^  Under  the  law  of  comity  between  states,  the  lex  loci 
contractus  governs  the  validity  of  contracts,  but  not  the  rem- 
edy or  rules  of  evidence.  If  the  law  of  the  contracting  state 
contravenes  the  policy  of  the  state  where  the  remedy  is  pur- 
sued, or  infringes  upon  the  rights  of  citizens,  there  is  then  na 
rule  of  comity  requiring  the  latter  state  to  enforce  the  con- 
tract.' In  Ohio  it  has  been  held  that  a  contract  compounding 
a  crime,  valid  by  the  laws  of  the  state  where  made,  will  be 
carried  into  effect.* 
Sec.  44:6.  Petition  upon  contract  —  Skeleton  form. — 

The  plaintiff  states  that  on  the day  of -,  18 — ^,  the 

defendant  entered  into  a  contract  in  writing  with , 

by  the  terms  of  which  it  was  agreed:  {Owe  substance  of  con- 
tract.'] 

The  plaintiff  further  says  that  he  has  in  all  respects  fulfilled 
and  performed  all  things  in  the  said  contract  to  be  by  him 
fulfilled   and    performed.      The   plaintiff    further   says    that 

alwa,ys  since  the day  of ,  18 — ,  and  at  the  present 

time,  the  defendant,  in  violation  of  his  said  agreement  \Jiere 
state  breaches  of  contract\  by  reason  whereof  the  plaintiff  is- 
entitled  to  recover  from  the  defendant  the  sum  of dol- 
lars, for  which  he  accordingly  demands  judgment. 

Note.— See  Grasselli  v.  Lowden,  11  O.  S.  349.  If  there  be  a  stipulation, 
for  liquidated  damages  which  are  uncertain  and  conjectural,  it  will  be  dis- 
regarded. Id.  If  an  evidence  of  indebtedness,  attach  a  copy ;  otherwise 
not.     Ante,  sees.  57,  433. 

Sec.  447.  Petition  on  contract  for  sale  of  goods,  the  pro- 
ceeds of  which  are  to  be  applied  by  vendee  towards  liquida- 
tion of  indebtedness  of  insolvent  vendor,  for  recovery  of 
balance  after  payment  of  debts. — 

{Caption^  etcl 

That  on  the day  of ,  18 — ,  plaintiff  was  in  failing^ 

circumstances  and  unable  to  meet  his  debts  then  due  and  to 
become  due,  and  tl:iat  in  order  to  effect  a  compromise  with 

1  Correll  v.  Construction,  etc.  Co.,  Goudy  v.  Gebhart,  1  O.  S.  266 ;  1 
16  S.  E.  Rep.  156  (S.  C.,  1892).  Daniel's  Neg.  Inst,  aec.  865 ;  Hill  v. 

2  Harrison  v.  Baldwin,  5  O.  C.  C.  Spear.  59  N.  H.  253 ;  Greenwood  v, 
310 ;  Delayhe  v.  Heitkemper,  16  Neb.  Curtis,  6  Mass.  358. 

478 ;  Herrick  v.  Railway  Co.,  31  Minn.  <  Baldwin  v.  Harrison,  24  W.  L. 
11 ;  16  N.  W.  Rep.  413.  B.  27 ;  afif'd,  5  O.  C.  C.  310,  but  pend- 

^  Kanaga  v.  Taylor,  7  O.  S.  134,  14;i ;     ing  in  supreme  court 


§  447.]  CONTRACTS,  413 

his  creditors,  and  to  prevent  a  sacrifice  of  his  said  stock  of 
goods,  he  entered  into  a  contract  with  the  defendant,  J.  0.  S., 
by  the  terms  of  which  contract  plaintiff  sold  and  ti-ansf erred 
ail  his  stock  of  goods  then  invoiced,  together  with  the  fixtures 
about  and  in  his  business  house,  and  accounts  due  said  plaint- 
ifi',  amounting  to  the  sum  of  $ . 

Said  J.  C.  S.,  bv  the  terms  of  said  contract,  Avas  to  use  the 
amount  of  pro]5erty  and  accounts  above  sold  and  transferred 
to  him  in  payment  of  the  debts  of  said  plaintiff  by  way  of 
compromise  as  he  should  be  able  to  obtain  said  claims  against 
said  plaintiff,  said  J.  C.  S.  not  to  pay  out  on  the  said  claims 

against  said  plaintiff  a  sum  exceeding  the  sum  of  S ,  and 

the  said  J.  C.  S.  was  to  pay  balance,  after  paying  debts  of 
plaintiff,  to  this  plaintiff. 

Plaintiff  herewith  files  a  copy  of  said  contract  with  all  in- 
dorsements. 

Plaintiff  further  says  that  the  said  J.  C.  S.  took  possession 
of  said  stock  of  goods,  fixtures  and  accounts  sold  to  him  by 
the  plaintiff,  and  entered  upon  and  executed  the  trust  created 
by  said  contract,  and  settled  and  compromised  and  paid  off 
the  debts  of  said  plaintiff. 

The  debts  of  said  ])laintiff  amounted,  at  the  time  of  said 
sale  and  transfer  to  said  J.  0.  S.  of  said  stock  of  goods,  to  the 

sum   of  $ ,  and  were  to  the  following  persons,  to  wit: 

[JVames  of  debtors.'] 

And  that  the  said  J.  C.  S.  paid  off  and  settled  the  above- 
mentioned  claims  as  follows :  [^N'ames  of  debtors  j)ciid.'\  The 
whole  amount  paid  by  said  defendant  J.  C.  S.  in  payment 
and  satisfaction  of  all  the  claims  against  the  plaintiff  being 

$ and  no  more,  and  leaving  a  balance  in  the  hands  of  said 

J.  C.  S.,  after  paying  all  the  debts  of  said  plaintiff,  to  the 
amount  of  S . 

Plaintiff  avers  that  all  said  claims  against  him  were  compro- 
mised and  paid  off  on  the day  of ,  IS — ,  and  plaintiff 

avers  that  he  repeatedly  requested  J.  C.  S.  to  account  to  him 
for  the  balance  in  his  hands  after  the  payment  of  his  debts 
aforesaid,  but  the  defendant,  J.  C.  S.,  has  neglected  hitherto 
and  still  neglects  and  refuses  to  pay  over  or  to  account  to 
l)laintiff  for  said  balance. 

Plaintiff  avers  that  there  is  due  him  from  the  defendant, 

J.  C.  S.,  on  the  claim  set  up  in  the  petition,  the  sum  of  $ 

with   interest  thereon  since  ,  IS — ,  and  for  which  sum, 

-with  interest,  he  asks  judgment  against  the  said  J.  C.  S.,  and 
for  other  relief.  Plaintiff  also  asks  that  the  defendant,  J.  C.  S., 
may  make  true  answers  to  the  interrogatories  attached  to 
the  petition  by  ])laintiff  touching  the  subject-matter  of  this 
suit. 

Note.— Taken  from  Bryant  v.  Swetland,  48  O.  S.  194. 


41-i-  CONTKACTS.  [§,§  448,  449. 

Sec.  448.  Petition  for  breach  of  verbal  contract  of  sale.— 

That  on  or  about,  the day  of  ,  IS—,  the  said 

plaintiff  entered  into  a  verbal  agreement  with  said  defendant, 
whereby  the  said  defendant  promised  and  agreed  with  said 
plaintiff  that  in  consideration  of  the  said  ])laintiff  purchasing 

from  said  defendant  a  certain  newspaper,  known  as  the 

Gazette,  together  with  the  good  will  of  the  same  and  all  type, 
fixtures  and  appliances  of  said  newspaper,  and  paying  there- 
for the  sum  of dollars,  that  he,  the  said  defendant,  would 

furnish  .and  provide  the  said  newspaper,  for  the  consideration 
aforesaid,  with  a  new  dress. 

Plaintiff  avers  that  he  did  so  purchase  said  newspaper  and 
has  duly  performed  all  the  conditions  of  said  contract  on  his 
part  to  be  performed,  but  said  defendant  has  failed  to  fulfill 
his  part  of  said  contract  in  this,  to  wit:  He  has  failed  and  re- 
fuses to  provide  and  furnish  said  newspaper  with  a  new  dress. 

Plaintiff  further  says  that  at  the  time  of  entering  into  said 
contract  a  new  dress  for  said  newspaper  was  reasonably  worth 
the  sum  of  — —  dollars ;  that  said  defendant  has  paid  thereon 

the  sum  of dollars ;  that  no  other  payments  have  been 

made  thereon,  and  that  there  is  due  and  unpaid  to  said  plaint- 
iff from  said  defendant  the  sum  of dollars. 

Wherefore  the  plaintiff  prays  judgment  against  the  said  de- 
fendant for  the  sum  of dollars,  damages  so  as  aforesaid 

sustained. 

Note. —  From  Gaunier  v.  Riley,  Supreme  Court,  unreported,  No.  1627. 

Sec.  449.  Petition  for  breach  of  contract  for  sale  of 
patent-right. — 

The  plaintiff  says  that  on  or  about  the day  of -, 

18 — ,  he  entered  into  a  contract  with  the  defendants,  whereby 
said  defendants,  under  the  firm  name  as  aforesaid,  agreed  and 
bound  themselves  to  sell  and  convey  unto  this  plaintiff,  for 
the  consideration  of dollars  in  hand  paid  by  this  plaint- 
iff, the  undivided interest  in  the  states  of and ,  in 

certain  letters  patent  granted  by  the  United  States  of  Amer- 
ica, for  a  certain  invention  known  as . 

That  at  the  date  of  said  contract  plaintiff  paid  to  said  defend- 
ants said  sum  of dollars,  and  said  defendants  agreed  that 

within  a  I'easonable  time  thereafter  they  woukl  convey  to  said 

plaintiff'    said  interest    in    said   letters   patent  for  said 

states,  which  time  has  long  since  elapsed;  yet  said  defendants 
have  not  conveyed  said  interest  and  are  unable  to  do  so,  for 
the  reason  that  they  have  not  title  to  the  same ;  that  said  de- 
fendants, neither  at  the  time  of  said  meeting  nor  at  any  other 
time,  have  owned  any  valid  patent  as  Avarranted  by  them ;  that 
in  fact  said  defenchinls  never  had  any  valid  patent  for  any  such 
improvement,  for  the  reason  that  said  pretended  patent  was 


§  450.]  CONTKACTS.  415 

at  all  times  void  and  absolutely  worthless,  that  the  same  had 
been  invented  and  publicly  used  by  parties  long  prior  to  said 
pretended  invention  and  patent. 

Wherefore  plaintiff  says  that  there  was  a  total  failure  of 

the  consideration  of dollars  so  paid  by  him,  and  a  breach 

of  said  warranty  in  said  contract. 

The  plaintiff  further  says  that  on ,  IS — ,  he  served 

notice  upon  said  defendants  to  make  said  title  to  him  within 

days  or  he  should  annul  said  contract  and  bring  suit  to 

recover  back  said  money  paid,  which  notice  was  disregarded 

by  defendants,  and   on ,  18—,  said   plaintiff  "served 

written  notice  upon  said  defendant  that  he  did  cancel  said 
contract. 

The  plaintiff  says  that  by  reason  of  the  failure  aforesaid  he 

has  been  damaged  in   the  sum  of dollars,  with  interest 

from ,  18—,  and  for  which  sum  with  costs  of  suit  he 

prays  judgment. 

Note.—  From    Keruohan   v.   Clemmens,   Supreme    Court,   unreported. 

No.  1860. 

Sec.  450.  Petition  on  a  contract  for  assignment  of  let- 
ters patent,  for  recovery  of  profits  derived  from  manu- 
facture and  sale  of  commodities. — 

\_Ca2)tion.'\ 

Plaintiff  herein,  complaining  of  the  above-named  defendant, 
shows  to  this  court,  and  alleges :  (1)  On  information  and  be- 
lief that,  at  all  the  times  hereinafter  mentioned,  the  defend- 
ant was   and    still  is   a  corporation  dulv  created,  organized 

and   existing  under  the  laws  of  the  state   of   .      That 

heretofore  there  was  issued,  in  due  form  of  law,  unto  this 
plaintiff  by  the  United  States  of  America,  five  several  letters 
patent,  as  follows,  to  wit :  Xumber  329,284,  granted,  etc.,  and 
being  the  same  letters  patent  mentioned  in  the  contract  duly 
made,  executed  and  delivered  interchangeably  between  the 
parties  thereto,  a  copy  of  said  agreement  being  hereunto  an- 
nexed. That  thereafter,  and  under  and  bv  virtue  of  said 
annexed  contract  in  that  behalf;  this  plaintiff'"  did,  on  or  about 
— ,  1*^—,  duly  assign,  transfer  and  set  over  unto  the  de- 
fendant, for  its  use  and  at  its  request,  the  letters  jiatent  afore- 
said. That  thereafter,  and  ever  smce,  the  defendant,  as  plaintiff 
is  informed,  verily  believes  and  alleges,  has  manufactured  and 

sold  untler  said  letters  patent  and  contract  upwards  of  

of  the  commodities  thereby  covered  and  referred  to,  and  that, 
after  all  the  deductions  authorized  by  said  agreement  fi'oni 
the  proceeds  of  such  sales,  there  remains  received  by  defend- 
ant, and  being  net  profits,  the  sum  of  dollars.     That 

plaintiff  has  duly  and  fully  done  and  performed  all  the  mat- 
ters and  things  by  him  to 'be  done  and  performed  under  said 
contract  on  his  part,  and  from  said  defendant  demanded  his 


416  CONTEACTS.  [§§  -151,  452. 

said  moiety  of  net  profits  thereunder  accordingly,  but  the 
defendant  has  refused  to  pay  over  said  moiety  or  account 
therefor,  to  plaintiff's  damage dollars.  Wherefore  plaint- 
iff demands  judgment  against  defendant  for dollars,  be- 
sides the  costs  and  disbursements  of  this  action. 

Note.— Approved  in  Dalzell  v.  Watch-case  Co.,  33  N.  E.  Rep.  1071  (N.  Y., 
1893). 

Sec.  451.  Petition  for  breach  of  contract  for  delivery  of 
goods. — 

[Captio7i.'] 

Plaintiff  says  that  on  or  about  the day  of ,  18 — , 

the  defendants  were  the  owners  of  and  in  possession  of  a  cer- 
tain crop  of  grapes,  to  wit,  at  county,  Ohio,  on  the 

premises  of  defendants,  then  in  readiness  to  be  harvested  and 
for  market. 

Plaintiff  says  that  the  defendants  then  and  there,  in  consid- 
eration of  the  promises  of  plaintiff,  hereinafter  made,  sold  and 
agreed  to  gather  and  deliver  to  plaintiff  at  the  wharf-boat  of 

at  N.,  Ohio,  without  delay,  all  of  said  crop  of  grapes  in 

good  order,  estimated  to  contain bushels  of  grapes,  at  the 

agreed  price  and  value  of dollars  per  stand,  each  stand 

to  contain bushels. 

Plaintiff  further  says  that  by  the  terms  of  said  agreement 
he  was  to  pay  for  said  grapes  as  they  were  so  delivered  to 
him,  and  that  under  said  agreement  defendants  did  com- 
mence to  gather  and  deliver  said  grapes  to  this  plaintiff,  and 
that  he  paid  for  the  same  as  he  agreed  to  do,  and  that  the 
defendants  continued  to  so  deliver  said  grapes,  until  he  de- 
livered abut  twelve  stands  thereof  and  received  from  this 
plaintiff  his  pay  therefor,  but  that  defendants  then  and  there- 
after failed  and  refused  to  deliver  the  remainder  of  said  grapes, 
although  the  plaintiff  was  ready  to  receive  the  same  and  pay 
for  them  upon  deliver}'^  as  he  had  agreed  to  do,  and  that,  on 
the  contrary,  defendants  gatheretl  and  sold  the  same  to  an 

other,  to  the  damage  of  this  plaintiff  in  the  sum  of dol 

lars,  for  which  he  asks  judgment. 

Note.—  From  Simmons  v.  Green,  85  O.  S.  104. 

Sec.  452.  Petition  for  failnre  to  deliver  goods  sold  as 

per  contract. — 

The  plaintiffs, Bros.,  sa}^  that  they  are  a  copartnership, 

unincorporated,  formed  for  the  purpose  of  and  doing  busi- 
ness in  the  state  of  Ohio ;  that  the  defendant  F.  J.  D.  was,  at 
the  times  hereinafter  mentioned,  and  has  ever  since  been, 
doing  business  in  C,  Ohio,  under  the  firm  style  of  F.  J.  D.  c\: 

Co.;  that  on  or  about,  to  wit, ,  18 — ,  the  defendant  sold 

to  the  plaintiffs  a  large  quantity  of  paper  bags,  in  the  quanti- 


§  453.]  CONTRACTS.  417 

ties  and  at  the  respective  prices  \set  forth  quantities  and  prices] ; 

that  said  sale  amounted  to dollars ;  that  said  sale  was  made 

on  the  following  terms  of  credit,  to  wit:  [set  for^th  terms']', 
that  the  plaintiffs  then  were  and  ever  since  have  been  en- 
gaged in  business  in  C,  Ohio;  and  that  said  paper  ba^s  were 
bought  by  them  for  shipment  to  said  city  and  for  use  in  their 
said  business  there,  and  for  that  market,  and  that  all  of  these 
facts  and  purposes  were  known  to  the  defendant  at  the  time 
of  said  sale,  and  of  the  acts  herein  alleged;  that  defendant 
set  apart  said  goods,  and  caused  a  large  quantity  thereof  to 
be  delivered  at  the  depot  of  a  common  carrier  for  transpor- 
tation to  C.  to  the  plaintiffs,  and  that  on ,  18 — ,  he, 

without  plaintiffs'  consent,  canceled  the  sale  and  disposed  of 
said  goods  wrongfully,  and  in  a  manner  to  plaintiffs  unknown, 
but  to  and  for  his  own  use  and  benefit;  that  at  the  time  of 
said  cancellation  plaintiffs  had  sold  and  contracted  to  sell  a 
lar'ge  quantity  of  said  bags  at  an  advance  on  the  said  princi- 
])al  sum  of  — "—  per  cent.;  and  plaintiffs  further  say  that  they 
were  unable  to  replace  said  purchase,  and  were  unable  to  ob- 
tain like  goods  to  substitute  those  bought  of  the  defendant, 
and  that  on  the  day  of  sale  of  said  goods  by  the  defendant 
to  the  plaintiffs,  as  well  as  on  the  day  of  said  cancellation  of 
sale,  such  goods  were  of  such  a  character  that  they  could  not 
be  replaced  nor  substituted  by  any  other  goods,  and  hence 
had  no  regular  market  price  or  value,  and  that  defendant  was 
well  aware  on  the  day  of  sale  both  of  their  peculiar  charac- 
ter as  aforesaid,  and  of  their  not  possessing  a  regular  market 
price  or  value;  and  the  plaintiffs  further  say  that  on  the  day 
when  the  defendant  canceled  the  sale  as  aforesaid,  the  said 
bags  purchased  by  plaintiffs  were  worth  the  sum  of  dol- 
lars. 

Plaintiffs  further  say  that  they  have  been  at  all  times  and 
are  now  ready  to  do  and  perform  everything  to  be  done  by 
them  in  the  carrying  out  of  the  sale,  but  that  defendant,  al- 
though often  requested  so  to  do,  has  refused  to  ship  and  com- 
plete the  shipment  of  said  goods  to  said  plaintiffs  at  C,  Ohio, 
and  that  by  reason  of  the  facts  set  forth  herein  the  plaintiffs 

have  suffered  a  loss  of  tloUars,  which  defendant  refuses 

to  pay. 

Wlierefore  the  plaintiffs  pray  judgment  against  defendant 
in  the  sum  of dollars,  with  interest  from ,  and  costs. 

Note.—  Clianged  from  Diem  v.  Koblitz,  49  O.  S.  41.  The  petition  in  the 
case  from  which  tliis  form  was  taken  set  forth  a  copy  of  the  bill  of  goods 
sold  as  an  exhibit  and  referred  to  it  to  supply  averments,  which  was  not 
correct  pleading,  but  no  objections  were  made  on  that  account  Ante,  sec 
57. 

Sec.  453.  Defenses  to  actions  on  contracts  —  The  answer. 

A  contract  is  always  presumed  to  be  made  upon  a  valuable 
consideration,  and  a  want  thereof  must  be  shown  by  the  party 


418  CONTRACTS.  [§  453. 

attacking  it,'  as  want  of  consideration  cannot  be  shown  under 
a  general  denial.-  But  the  defendant  may  always  allege  want 
or  failure  of  consideration.^  It  is  a  sound  principle  and  a  well- 
settled  rule  of  law  that  a  contract  contrary  to  morals  or  pub- 
lic policy  or  forbidden  by  law  will  not  be  enforced.^  But  it 
is  held  that  where  the  consideration  -of  a  contract  is  partly 
legal  and  partly  illegal  and  the  same  is  capable  of  separation, 
the  good  may  be  separated  and  enforced.^  But  where  a 
contract  is  entire,  and  a  part  is  illegal  because  it  falls  within 
the  statute  of  frauds,  the  remainder  cannot  be  enforced.®  As 
illegal  consideration  in  whole  or  in  part  defeats  a  contract 
when  inseparable,  a  debt  which  has  its  inception  in  illegality 
cannot  be  made  valid  by  a  new  promise.'  A  contract  by 
which  a  voluntary  association  is  formed  for  the  purpose  of 
controlling  the  manufacture  and  sale  of  an  article  of  general 
use  is  against  public  policy  and  will  not  be  upheld.^  While 
a  party  who  has  entered  into  a  contract  tainted  with  illegality 
may  not  seek  affirmative  relief,  still  he  may  plead  the  illegal- 
ity as  a  defense  even  though  he  may  be  in  pari  delicto.^  And 
so  long  as  the  contract  remains  unexecuted  a  party  may  be 
relieved  therefrom.'^  So  a  verbal  agreement  to  will  property 
to  another  cannot  be  enforced  unless  something  be  done  to 
take  it  out  of  the  statute,  as  possession  or  part  performance." 
But  acts  of  part  performance,  to  relieve  the  contract  from  the 
statute,  must  of  themselves  be  clearly  referable  to  some  con- 
tract between  the  parties  relating  to  the  same  parties.'- 

1  Nelson    v.   White,   61    Ind.    139;        « Central   Ohio  Salt  Co.  v.  Guth- 
White   V.    Drake,  3  Abb.  N.  C.  134 ;     rie,  35  O.  S.  666. 

Smith  V.  Flack,  95  Ind.  131;  Eldridge  » Jacobs  v.  Mitchell,  46  O.  S.  606; 

V.  Mather,  2  N.  Y.   157 ;  Weaver  v.  Rowl  v.  Ragut,  4  O.  400 ;  McQuaig  v. 

Barden,   49    N.    Y.    286;    Dubois  v.  Rosecrans,   36  O.   S.    442;   Kahn  v. 

Hermance,  56  N.  Y.  673 ;  Hammond  Walton,  46  O.  S.  195-209. 

V.  Earle,  58  How.  Pr.  426.  ^0  Strait  v.  Hardware  Co.,  18  N.  Y. 

2  Bingham  v.  Kimball,  17  Ind.  396.  S.  224. 

3  Judy  V.  Louderman,  48*0.  S.  562;  "  Hopple  v.  Hopple,  3  O.  C.  C.  102; 
O,  Code,  sec.  5071.  Shahan  v.   Swan,  48  O.  S.  25.     See 

^Spurgeon  v.  McElwaine,  6  O.  442.  author's  note,  32  C.   L.  J.  205-208; 

estate   v.   Williams,  29  O.  S.  161.  Lindsey  v.  Lynch,  2  Sch.  &  Lef roy,  1 ; 

See  ante,  sec.  445.  Maddison  v.  Alderson,  L.  R.  8  App. 

6  Howard  v.   Brower.  37  O.  S,  402,  Cas.  467 ;  Dale  t.  Hamilton,  5  Hare, 

407 ;  Hopple  v.  Hopple,  3  O.  C.  C.  106.  369;  Van  Dyke  v.  Vreeland,  11  N.  J. 

See  ante,  sec.  445.  Eq.  370. 

■^Bick  V.  Seal,  45  Mo.  App.  475.  i^  Shahan  v.  Swan,  supra. 


J 


§  453.]  CONTRACTS.  419 

Where  parties  have  partly  performed  an  illegal  contract,  a 
court  will  not  lend  its  aid  to  enforce  or  rescind  it,  but  will 
leave  them  where  it  found  them.^  The  rule  that  relief  will 
not  be  granted  to  one  of  the  parties  to  an  illegal  contract  is 
not  applicable  to  a  case  where  relief  is  sought  against  the  act 
of  an  agent  or  trustee-  of  one  party,-  but  relief  may  be  had  by 
one  party  to  an  illegal  unexecuted  contract  when  it  will  pre- 
vent its  execution,  upon  the  principle  of  locus  penitentice:^  Re- 
covery may  be  had  upon  a  contract  for  a  breach  thereof  where 
the  same  was  procured  by  fraud.^  An  agreement  not  to  make 
a  defense  to  divorce  proceedings  cannot  be  enforced.^  Where 
illegality  of  a  contract  is  relied  upon  as  a  defense,  a  statement 
of  the  facts  upon  Avhich  such  illegality  is  founded  should  be 
fully  set  forth  as  it  cannot  be  shown  under  a  general  denial.® 
An  objection  that  a  contract  is  void  because  made  on  Sunday 
must  be  made  by  answer,  not  by  demurrer."  If  a  defendant 
desires  to  set  up  a  counter-claim  upon  the  ground  that  the 
plaintiff  has  not  complied  with  the  terras  of  the  contract,  the 
facts  constituting  such  non-performance  must  be  fully  averred, 
and  must  be  of  such  a  nature  as  to  warrant  recovery  against 
the  plaintiff.^  A  certain  statement  of  facts  may  constitute  a 
defense  to  an  action  on  a  contract  and  also  a  counter-claim, 
but  in  pleading  the  same  they  should  be  formally  separated.^ 
An  answer  to  an  action  for  a  breach  of  contract  which  sets 
up  a  contract  different  from  that  averred  in  the  petition  is 
immaterial,  and  will  not  controvert  that  set  up  by  the  plaint- 
iff, which  in  the  absence  of  a  specific  denial  will  be  taken  as 

1  Hooker  v.  De  Palos,  28  O.  S.  251 ;  ^  Commissioners  v.  Noyes,  35  O.  S. 
16  O.  54;  6  O.  227;  4  O.  400.  207:  18  O.  S.  353;  31  O.  S.  555;  34 

2  Hafer  v.  Railroad  Co.,  14  W.  L.  O.  S.  467 ;  31  Cal.  271 ;  Stafford  Pav- 
B.  72;  Tenant  v.  Elliott,  1  B.  &  P.  3.  ing  Co.  v.  Monheimer,  41  N.  Y.  Super. 
See,  also,  L.  R  8  Ch.  App.  149;  Eler-  184;  Mathews  v.  Leaman,  24  O.  S. 
man  v.  Insurance  Co.,  35  O.  S.  324;  621 ;  Bliss  on  Code  Pldg.,  sec.  320. 
Wharton  on  Contracts,  sec.  357.  "^  West.  Union  Tel.  Co.  v,  Eskridge, 

3  Hafer  v.  Railroad  Co.,  14  W.  L.  33  N.  E.  Rep.  238  (Ind.,  1893). 

B.  68,  72 ;  Spring  Co.  v.  Knowlton,        ^  Brandham  v.  Johnson,    62    Ind. 
103  U.  S.  60 ;  Hooker  v.  De  Palos,  2    259.     See  Parsons  v.  Sutton,  66  N.  Y. 

C.  S.  C.  R  370.  92.     See  ante.  sees.  80,  81. 

<  Colbert  v.  Shepherd,  16  S.  E.  Rep.  >*  Lancaster,  etc.  v.  Colgate,  12  0.  S. 
246  (Va.,  1892).  844.     See  ante,  sees.  20, 81. 

*  Stouten  burg  v.  Ly  brand,  13  0.  S. 
228. 


420  CONTRACTS.  [§  454. 

true.*  If  in  such  a  case,  however,  the  defendant  denies  the 
contract  alleged  by  plaintiff,  both  instruments  must  be  sub- 
mitted to  the  jury.-  Where  a  contract  has  been  modified  and 
the  answer  admits  non-performance  thereunder,  evidence  can- 
not be  admitted  showing  an  extension  of  time  or  a  change  in 
the  place  of  performance.^  In  an  action  to  recover  a  debt 
which  a  person  agreed  with  a  third  party  to  pay,  the  defend- 
ant may  set  up  any  defense  which  he  could  have  made  as 
against  the  contracting  party.*  In  an  action  upon  a  specialty 
by  the  payee,  an  answer  by  the  maker  setting  up  want  of  con- 
sideration constitutes  a  good  defense.*  If  a  person  has  not 
been  guilty  of  negligence  he  may  rescind  a  contract  entered 
into  by  reason  of  a  material  mistake  as  soon  as  discovered.' 

Sec.  454.  Teuder  and  offer  in  actions  on  contracts. —  In 
an  action  on  a  contract  for  the  payment  of  money,  the  de- 
fendant may  answer  that  he  did  tender  payment  of  money 
due  thereon,  at  any  time  before  the  commencement  of  the 
action.  Or  he  may,  at  any  time  before  trial,  pay  to  the  clerk 
the  money  so  tendered,  in  which  case  the  plaintiff  is  not  en- 
titled to  judgment  for  more  than  the  amount  so  tendered.^  A 
formal  tender  is  not  required  where  it  is  certain  that  it  will 
not  be  received."  If  a  contract  calls  for  the  payment  of  any 
article  or  thing  other  than  money,  or  for  the  performance  of 
any  work  or  labor,  the  defendant  may  answer  that  he  did 
tender  payment  or  performance  of  the  contract  at  the  time 
and  place  provided ;  in  which  case,  if  the  finding  be  in  his 
favor  as  to  such  tender,  the  plaintiff  will  not  be  entitled  to 
recover  interest  or  costs.^  "Where  affirmative  relief  is  sought 
against  a  usurious  contract,  either  by  original  or  cross  peti- 
tion, a  tender  of  the  amount  due,  exclusive  of  usury,  must  be 
made.^** 

1  Simmons  v.  Green,  35  O.  S.  104 ;  257-^5 ;  Railway  v.  Oswald,  18  Kans. 
Marx  V.  Gross,  22  N.  Y.  Supp,  393.  336. 

2  Wagener  v,  Butler,  22  N.  Y.  692.  sByers  v.  Chapin,  28  0.  S.  300. 

3  Ryan  v.  Rogers,  93  CaL  349;  31  •  O.  Code,  sec.  5137. 

Pac  Rep.  344  (1892).  8  isham   v.  Greenham,  1  Handy, 

«  Trimble  v.  Strother,  25  O.  S.  378.     357. 

5  Louderman  v.  Judy,  2  O.  C.  C.  ^  O.  Code,  sec.  5138 ;  Huntington  v. 
251-5 ;  Richardson  v.  Bates,  8  O.  S.    Ziegler,  2  O.  S.  10. 

w  Bank  v.  Bell,  14  O.  &  200. 


§  455.]  CONTRACTS.  421 

Sec.  455.  Answer  that  goods  were  not  delivered  because 
of  insolvency  of  vendee  after  making  contract. — 

Defendant  admits  that  he  is  doing  business  in  the  said  city 

of under  the  firm  name  of  F.  J.  D.  6z  Co.     He  admits 

that  on  or  about ,  18 — ,  he  made  an  agreement  to 

sell  plaintiffs  a  quantity  of  paper  bags. 

He  says  that  the  terms  of  said  sale  were  that  plaintiffs  were 
to  deliver  to  him  their  negotiable  paper  for  the  purchase-price, 
payable  in  equal  instalments  to  the  order  of  defendant  in 
thirty,  sixty  and  ninety  days  from  date. 

He  says  that  he  sent  a  part  of  said  goods,  in  amount  about 
two  car-loads,  called  for  by  said  agreement  of  sale,  to  the  depot 
of  the  C,  C,  C.  <fe  I.  E.  R.  Co.,  at  C,  Ohio,  when  ho  was  in- 
formed and  so  charges  that  plaintiff's  commercial  paper  had 
gone  to  protest  in  said  city  of  C,  and  they  were  insolvent ; 
that  he  thereupon  disposed  of  said  goods  to  the  firm  of  H.  &  B., 
in  C,  at  seventy  per  cent,  discount  on  the  list  price,  delivered 
at  C. ;  that  said  goods  were  damaged  by  smoke  and  fire, 
and  consisted  of  square  bags.  And  that  after  he  had  dis- 
posed, at  the  price  aforesaid,  in  the  manner  aforesaid,  of  the 
quantity  of  goods  covered  by  the  agreement  of  sale  with 
plaintiffs,  he  still  had  a  large  quantity  of  similar  goods  left  in 
store  for  sale. 

Defendant  denies  each  and  every  allegation  contained  in 
said  petition  and  not  herein  admitted  to  be  true. 

Wherefore  he  prays  to  be  hence  dismissed  with  costs. 

Note. — From  Diem  v.  Koblitz.  49  O.  S.  41,  in  which  it  was  held  that  the 
seller  is  not  bound  to  deliver  goods  if  the  buyer  be  insolvent. 


CHAPTER  29. 


CONTRIBUTION. 


Sec.  456.  Parties  in  actions  for  contri- 
bution. 

457.  Nature  of  remedy  and  prin- 

ciples of  pleading. 

458.  Petition  for  contribution  in 

paying  note. 


Sec,  459.  Petition  to  compel  contri- 
bution by  one  of  two  or 
more  judgment  debtors. 

460.  Petition  by  one  who   has 

been  compelled  to  pay  a 
judgment  —  Short  form. 

461.  Defenses  to  actions  for  con- 

tribution. 


Sec.  456.  Parties  in  actions  for  contribution. —  It  is  essen- 
tial that  all  who  are  liable  to  contribute  towards  the  liquida- 
tion of  a  common  burden  should  be  made  parties  to  an  action 
for  contribution,  so  that  the  amount  required  of  them  re- 
spectively may  be  adjusted  in  one  action.^  If  any  are  de- 
ceased their  personal  representative  should  be  made  a  party.'^ 
It  is  not  necessary,  however,  to  make  a  principal  or  co-surety 
who  is  insolvent  a  party ;  ^  nor  a  surety  who  is  within  the 
jurisdiction  of  the  court.*  Where  more  than  one  surety  pays 
a  debt  jointly,  they  may  join  in  an  action  for  contribution 
against  those  who  have  failed  to  pay  their  proportionate 
share ;  ^  and  a  surety  upon  the  bond  of  an  oflBcer  who  has 
been  compelled  to  pay  something  on  account  of  a  default  of 
such  officer  may  join  his  co-sureties  in  an  action  against  the 
principal  to  compel  them  to  contribute  their  proportionate 
share,  or  he  may  prosecute  separate  actions  against  each  one ; " 
and  a  devisee  and  an  executor  may  also  be  joined  in  one  ac- 
tion upon  the  bond  of  a  deceased  surety.'^  In  actions  by  a 
surety  against  a  co-surety  to  establish  a  trust,  and  to  compel 
the  latter  to  reimburse  out  of  collaterals  in  his  hands,  the 


iCarr  v.  Waldron,  44  Mo.  393; 
Moore  v.  Moberly,  7  B.  Mon.  299; 
Pomeroy's  R  &  R,  sec.  885. 

2  Id, ;  Dussol  V.  Bruguiere,  50  Cal. 
456. 

*  Johnson  v.  Vaughn,  65  111.  435. 


♦Jones  V.  Blanton,  6  Ired.  Eq.  115. 

5  Fletcher  v.  Jackson,  23  Vt  581, 
593. 

6  Cunent  v.  Thompson,  2  C.  S.  C.  R. 
54  (Taft,  J..  1870). 

-  Shields  V.  Odell,  27  O.  S.  39a 


I  457.]  CONTRIBUTION,  423 

person  to  whom  payment  was  made  is  not  a  necessary  party 
to  the  action.^ 

Sec.  457.  Remedy  and  principles  of  pleading. —  The  rem- 
edy of  contribution  is  founded  upon  the  maxim  that  equality 
is  equity,  and  therefore  is  governed  by  equitable  rather  than 
legal  principles,  as  if  in  the  nature  of  contract.  It  is  an 
equitable  obligation  from  which  the  law  implies  a  contract 
that  those  who  have  entered  into  or  assumed  a  common  obli- 
gation shall,  when  the  exigencies  occur,  bear  that  common 
burden  equally;  and  in  the  absence  of  facts  or  circumstances 
which  render  the  equit}"  otherwise  than  equal,  there  being  no 
express  agreement  to  the  contrary,  equity  will  so  compel  con- 
tribution that  the  common  burden  shall  be  equally  borne.^ 
It  is  now  regarded  as  an  equitable  action  rather  than  a 
legal  one  as  upon  aji  implied  contract.  As  between  sureties 
there  is  an  equity  which  springs  up  at  the  time  the  relation- 
ship is  entered  into,  and  ripens  into  a  cause  of  action  when- 
ever one  of  them  is  compelled  to  pay  more  than  his  share  of 
the  common  obligation.  Equity  does  not  recognize  the  fiction 
of  an  implied  promise  as  did  the  common  law,  but  equalizes 
the  burden  because  of  the  moral  obligation  imposed.*  This 
equitable  right  becomes  a  vested  one,  which  cannot  be  taken 
away  by  the  creditor,  principal,  death  of  the  party,  or  by  the 
statute  of  limitations.*  As  already  stated,  before  this  remedy 
can  be  pursued  it  is  essential  that  all  parties  concerned  be 
equally  bound.^  It  must  also  appear  that  the  one  invoking 
the  remedy  has  paid  the  debt,^  d,  lyrima  foxie  case  being  estab- 
lished where  it  is  made  to  appear  that  one  of  two  joint  debtors 

1  Rosenthal  v.  Sutton.  31  O.  S.  406  See  Bulkeley  v.  House,  26  Atl.  Rep. 
(1877).  352  (Conn.,  1893). 

2  Railroad  Co.  v.  Walker,  45  O.  S.  *Camp  v.  Bostwick,  20  O.  S.  347 
577;  Hinckley  v.  Kreitz,  58  N.  Y-  citing  11  N.  H.  431;  4  Gratt.  387;  1 
583;  Sayles  v.  Sims,  73  N.  Y.  551:  Met.  387;  17  Mass.  464;  16  Ala.  465. 
Camp  V,  Bostwick.  20  O.  S.  337 ;  Mc-  It  has  been  held  in  a  case  earlier 
Crory  V.  Parks,  1 8  O.  S.  1;  Russell  v.  than  Camp  v.  Bostwick,  just  citedi 
Failor,  1  O.  S.  327 ;  Beach's  Eq.,  sec.  that  an  action  against  a  party  liable 
823;  6  Paige.  32;  2  Neb.  268;  2  to  contribute  is  limited  by  statute  to 
Wait's  A.  &  D.,  p.  288 ;  Bishop  on  six  years.  Neilston  v.  Fry,  16  O.  S. 
Contracts,  sec.  238.  552  (1866). 

3  Camp  V.  Bostwick,  supr-a.  and  ^  Hinckley  v.  Kreitz,  58  N.  Y.  583; 
cases  cited  in  last  note ;  4  Gratt.  268.  Sayles  v.  Sims.  73  N.  Y.  551. 

6  Wood  V.  Leland,  1  Met.  387. 


424  cont::i3ution.  [§  457. 

has  paid  more  than  his  proportionate  share.'  The  payment  of  a 
debt  purely  personal  cannot  of  course  be  enforced  upon  others, 
especially  if  the  grounds  rest  upon  the  moral  turpitude  of  the 
plaintiff.2  The  petition  for  contribution  sliould  contain  a  com- 
plete statement  of  the  facts  necessary  to  establish  the  right 
thereto/  In  earlier  cases  it  has  been  held  to  be  an  essential  pre- 
requisite to  an  action  for  contribution  that  notice  of  payment 
of  a  debt  by  a  surety  be  given,  or  a  demand  upon  the  co-surety 
be  made.'*  These  decisions,  however,  were  made  before  the 
common-law  fiction  in  reference  to  this  action  was  abandoned, 
and  while  the  remedy  was  not  regarded  as  it  now  is.  The 
more  sensible  rule,  and  the  one  adopted  by  courts  generally, 
is  that  a  previous  notice  of  payment  and  demand  for  contri- 
bution is  not  required;  that  in  any  event  the  want  of  notice 
can  only  affect  the  question  of  cost.  The  co-sureties  might 
with  some  reason  say  that,  if  they  had  known  of  the  default 
of  the  principal  and  been  called  upon,  they  would  have  con- 
tributed their  share  without  incurring  the  costs  of  an  action.^ 
This  remedy  may  be  invoked  in  favor  of  a  stockholder  in  a 
corporation  against  whom  the  statutory  liability  is  sought  to 
be  enforced,  giving  him  the  right  to  require  that  his  co-stock- 
holders be  made  parties,  that  they  may  be  compelled  to  con- 
tribute in  proportion  to  their  respective  shares  of  stock.  This 
right  grows  out  of  the  organic  relations  existing  between 
them ;  ^  and  when  this  liability  has  been  enforced  against  a 
portion,  recovery  pro  rata  may  be  had  from  the  remainder.^ 
But  a  member  of  an  insolvent  corporation  who  voluntarily  pays 
the  debts  of  such  corporation  cannot  recover  his  pro  rata 
share  of  such  indebtedness  from  another  member  who  was  at 
the  time  of  such  payment  solvent  and  within  the  same  juris- 
diction;^ as  payment,  to  entitle  one  to  contribution,  must  be- 

iGa8tnerv.Waggoner,260.  S.  450;  SNeilston    v.   Fry,   16  O.   S.   552; 

Wills  V.   Miller,  66  N.  Y.  255 ;  New-  Parkham   v.   Green,   64  N.   C.   436 ; 

come  V.  Gibson,  66  N,  Y.  258.  Chaffee  v.  Jones,  19  Pick.  260 ;  Woods 

2McCrory  v.  Parks,  18  O.  S.  1,  8.  v.  Perry,  9  la.  479;  Howe  Machine 

3  Van  Demark  v.  Van  Demark,  13  Co.  v.  Farrington,  82  N.  Y.  122. 

How.  Pr.  372;  Bachelder  v.  Fiske,  17  t-Umsted  v.  Buskirk,  17  O.  S.  113. 

Mass.  464.  '  Stewart    v.     Lay,    45    la.    604 ; 

*  Carpenter  v.  Kelly,  9  0. 107  (1893) ;  O'Reilly  v.  Bard,  105  Pa.  St  569. 

Sherrod  v.  Woodward,  4  Dev.  360-3 ;  ^  Burr  v.  Bates,  3  O.  C.  C.  1. 
Williams  v.  Williams,  5  O.  446. 


1 


§  457.]  CONTKIBUTION.  425 

under  a  legal  compulsion.^  Nor  can  a  surety  who  has  volun- 
tarily paid  a  void  note  maintain  an  action  against  his  co-surety 
for  contribution.^  Nor  can  the  maker  of  an  accommodation 
note  altered  after  its  delivery,  who  has  voluntarily  paid  the 
same,  recover  against  another  maker  thereof  who  has  not  con- 
sented to  or  ratified  such  alteration.^ 

Where  an  acceptor  of  an  accommodation  bill  of  exchange 
has  been  compelled  to  pay  the  same,  there  can  be  no  implied 
obligation  on  the  part  of  the  drawer  to  reimburse  him,  as  in 
the  absence  of  any  understanding  to  the  contrary  they  are 
not  co-sureties  for  the  payee  and  therefore  not  liable  to  con- 
tribution.* A  surety  for  a  partnership  who  has  paid  the  debt 
may  proceed  against  the  estate  of  a  deceased  partner  without 
first  prosecuting  a  suit  against  the  survivor.^  The  rule  that 
no  contribution  lies  between  trespassers  applies  only  to  cases 
where  those  claiming  contribution  have  knowingly  or  wan- 
tonly committed  a  wrong,^  and  as  a  general  rule  there  can  be 
no  right  of  contribution  between  joint  tort-feasors.'  But  this 
rule  is  not  of  universal  application,  and  is  limited  to  those 
engaged  in  doing  a  wrong  knowingly  and  wantonly,  and  has 
been  held  not  applicable  to  a  case  where  several  sureties  have 
directed  an  officer  to  make  a  levy,  which  is  made  upon  the 
wrong  goods,  and  the  true  owner  recovers  the  value  of  same 
from  the  officer  and  those  directing  the  levy.^  A  guarantor 
may  pay  the  debt  upon  maturity  and  enforce  the  principal 
obligation,  but  he  cannot  by  notice  impose  the  duty  of  active 
diligence  on  the  creditor.'  Nor  will  payment  by  one  of  two 
joint  obligors  of  an  amount  in  excess  of  their  proportion  of  a 
debt  which  is  barred  by  the  statute  of  limitations  entitle  him 
to  contribution  against  his  co-obligor.^"  The  obligation  of  one 
of  two  co-sureties  is  to  pay  the  whole  debt ;  and  if  that  is 
done  by  one,  he  may  compel  his  co-surety  to  contribute  any 

1  Id. ;  1  Parsons  on  Contracts  {7th  6  Horsey  v.  Heath,  5  O.  354. 
ed.),  p.  32;  3  Wharton  on  Contracts,  6  Atcheson  v.  Miller,  2  O.  S.  203. 
sees.    765-837.     See,   also,    Curtis    v.  '  Betts  v.  Gibbins,  2  A.  &  E.  57 ;  2 
Parks.  55  Cal.  106;  Andrews  v.  Cal-  Addison   on   Torts,    1197;    Bliss    on 
lendar.  13  Pi(  k.  484 ;  Lucas  v.  Insur-  Code  Pldg.,  sec.  89. 

ance  Co.,  6  Cowen,  635-8.  8  Atcheson  v.  Miller,  3  O.  S.  203. 

2  Russell  V.  Failor,  1  O.  S.  327.  9  Newcome  v.  Hale,  90  N.  Y.  327. 

3  Davis  V.  Bauer,  41  O.  S.  257.  lo  Turner  v.  Thorn,  17  S.  K  Rep.  323 
*  Barnett  v.  Young,  29  O.  S.  7.            (Va,  1893). 


426  CONTRIBUTION.  [§    l.jS. 

portion  in  excess  of  his  moiety/  But  where  a  surety  has 
taken  an  indemnity,  he  holds  the  same  as  a  trustee  for  his 
co-surety,  and  is  to  be  protected  like  a  trustee  when  he 
acts  with  integrity  and  ordinary  prudence.  When  such  has 
been  his  course,  any  change  in  the  indemnity  made  in  good 
faith  will  not  relieve  his  co-surety  from  contribution,  although 
it  might  be  otherwise  if  there  has  been  a  loss.^  A  joint  duty 
is  imposed  upon  railroad  companies  whose  roads  cross  at 
grade  to  keep  the  crossing  in  repair  and  maintain  watchmen 
thereat.  "When,  therefore,  one  company  performs  the  whole 
duty  in  this  respect  and  discharges  the  entire  obligation  rest- 
ing upon  all,  it  is  entitled  to  reimbursement  from  the  remain- 
der for  their  proportionate  share  of  the  burden  borne  by  the 
former.  In  such  a  case  the  duty  of  contribution  arises  by 
operation  of  law."  An  action  for  contribution  is  an  action 
for  money  and  hence  not  appealable.* 

Sec.  458.  Petition  for  contribution  in  paying  note. — 

On  the day  of ,  18 — ,  one  C.  D.,  with  the  plaintiff 

and  defendant  as  suVeties,  made  and  delivered  to  A.  B.  a  prom- 

issor}^  note  dated ,  18 — ,  for  the  sum  of  $ ,  payable 

to  the  said  A.  R.  in months  after  date,  upon  which  plaint- 
iff was  a  surety. 

That  when  said  note  became  due  the  said  C.  D.,  principal 
debtor,  being  wholly  insolvent,  the  plaintiff  as  one  of  the 
sureties,  by  reason  of  said  C.  D.'s  insolvency  and  inability  to 
pay,  was  compelled  to  and  did  pay  the  whole  amount  of  said 
note,  amounting  to  the  sum  of  $ . 

On  the' day  of ,  18 — ,  the  plaintiff  requested  the 

defendant  to  pay  the  sum  of  $ so  paid  by  this  plaintiff 

upon  said  note' as  his  contributive  share,  which  he  wholl}'^ 
failed  and  refused  to  pay. 

Defendant  is  therefore  indebted  to  plaintiff  in  the  sum  of 
$ as  his  contributive  share  of  the  note  so  paid  by  plaintiff. 

That  no  part  of  said  sum  has  been  paid,  and  there  is  now 

due  from  the  defendant  to  the  plaintiff  thereon  the  sum  of 

$ ,  for  which  he  asks  judgment. 

Note. —  Where  a  person  signing  a  note  adds  to  his  signature  the  words 
"security  to  above,"  the  first  sui-eties  cannot  compel  contribution,  unless 
such  person  intended  to  become  co-surety.  Thompson  v.  Sanders,  4  Dev.  & 
Bat  404;  Oldliam  v.  Broom,  28  O.  S.  41 ;  Baldwin  v.  Fleming,  90  Ind.  177. 
A  surety  has  no  greater  rights  against  a  co-surety  than  the  creditor  has 
against  them  both.    Russell  v.  Failor,  1  O.  S.  327. 

1  Morgan  v.  Smith.  70  N.  Y.  537 ;  3  Railroad  Co.  v.  Walker,  45  O.  S. 
Garfield  v.  Foskett,  57  Vt.  292 :  New-    577. 

comb  V.  Gibson,  127  Mass.  396.  *Gunsaulus  v.  Petit,  46  O.  S.  27. 

2  Carpenter  v.  Kelly,  9  O.  107. 


§  459.]  CONTKIBUTION.  427 

Sec.  459.  Petition  to  compel  coutribution  by  one  of  two 
or  more  judgment  debtors. — 

On  the day  of ,  IS — ,  a  judgment  was  rendered  in 

the court  of  common  pleas  of county,  Ohio,  in  favor 

of  A.  B.  against  E.  F.,  this  plaintiff,  and  defendant  C.  D.,  for 
the  sum  of  $ . 

That  execution  against  the  property  of  said  defendants  was 

thereupon  issued  to  the  sheriff  of  said  county  of ,  and  was 

by  him  levied  upon  certain  premises  situated  in   the  county 

or ,  and  state  of  Ohio,  which  said  premises  were  owned 

solely  by  this  plaintiff  and  no  part  thereof  were  owned  by  the 
defendant  C.  D. 

That  said  property  was  sold  on  the day  of .,  18 — , 

by  said  sheriff  according  to  law,  and  the  whole  [or,  a  portion] 
of  said  judgment  was,  by  said  sale,  collected  out  of  the  said 
plaintiff's  premises,  the  amount  so  collected  including  interest 
and  costs  accrued  upon  said  judgment  and  execution  in  the 
sum  of  $ . 

That  said  plaintiff  and  his  said  property  was  liable  only  for 
•one-half  of  said  judgment,  and  said  defendant  C.  D.  was  liable 
for  the  remaining  one-half  part  thereof. 

That  said  defendant  C.  D.  is  [or,  was,  at  or  since  the  time 
of  the  recovery  of  said  judgment]  the  owner  of  certain  real 

estate  situated  in  the  county  of ,  Ohio,  and  described  as 

follows:  [Descrijytio?!.]  That  said  judgment  so  as  aforesaid 
rendered  against  this  plaintiff  and  said  defendant,  and  which 
this  plaintiff  was  compelled  to  pay  as  aforesaid,  is  a  lien  upon 
said  real  estate,  and  is  liable  to  satisfy  the  said  judgment. 

Wherefore  the  said  plaintiff  asks  judgment,  that  said  prem- 
ises of  the  said  C.  D.  may  contribute,  in  the  manner  pre- 
scribed by  law,  the  one-half  part  of  said  amount  collected  out 
of  the  real  property  of  said  plaintiff  as  aforesaid,  to  wit,  the 

sum  of dollars,  with  interest  thereupon  from   the 

day  of ,  18 — ,  and  that  plaintilf  may  have  judgment  there- 
for, and  for  the  enforcement  of  the  said  contribution;  and 
that  the  court  will  permit  the  plaintiff  to  use  the  said  original 
judgment,  and  to  collect,  by  an  execution  issued  thereupon, 
out  of  any  real  property  subject  to  any  lien  thereof,  the  sum 
which  ought  to  be  contributed  by  that  property,  and  that  the 
plaintiff  may  have  such  other  or  further  relief  in  the  premises 
as  may  be  just  and  proper,  together  with  the  costs  of  this  ac- 
tion. 

Note. —  One  of  several  co-sureties  who  pays  a  joint  judgment  may  bring 
an  action  against  liis  co-sureties  to  be  subrogated,  even  tliough  the  judg- 
ment be  extinguished.  Neilston  v.  Fry.  Vi  O.  S.  552.  A  surety  ou  an  at- 
tachment undertaking  is  not  a  co-surety  with  an  additional  surety  on  a 
supersedeas  bond  in  same  cause,  and  no  right  of  contribution  arises  between 
them.  Hartweli  v.  Smith.  15  O.  S.  200  ;  Knox  v.  Vallandingham,  15  Smedes 
&  M.  526. 


428  CONTRIBUTION.  [§§  460, 461. 

Sec.  460.  Petition  by  one  who  has  been  compelled  to  pay 
a  judgment  —  Short  form. — 

That  on  the  day  of  ,  18—,  J.  D.  S.,  E.  M.  and 

D.  H.  recovered  a  judgment  in  the  court  of  common  pleas  of 

county,  in  the  state  of  Ohio,  against  the  plaintiff  and  the 

defendant  K.  Gr.  for  the  sum  of dollars,  debt  and  costs  of 

suit,  amounting  to dollars.     That  on  or  about  the 

day  of ,  18 — ,  the  plaintiff  was  compelled  to  and  did  pay 

off  and  discharge  said  judgment  and  costs  in  full,  whereby 
the  defendant  E.  G.  became  indebted  to  the  plaintiff  in  the 
sum  of dollars  with  interest  from  ,  as  his  propor- 
tionate share  of  said  judgment,  no  part  of  which  said  sum  has 
been  paid  by  said  E.  G.  to  this  plaintiff. 

Plaintiff  therefore  prays  judgment  against  the  said  defend- 
ant, etc. 

Sec.  461.  Defenses  in  action  for  contribution. —  As  be- 
tween joint  creditors  there  is  no  presumption  that  either  is 
primarily  liable.  Hence,  if  that  be  claimed,  or  if  there  be  no 
equitable  obligation  to  pay  proportionate  shares,  the  facts 
which  rebut  the  presumed  equity  must  be  set  up  by  way  of 
defense  and  not  negatived  in  the  petition.^  A  co-surety  is  not 
discharged  from  an  entire  debt  by  an  extension  granted  to 
one  surety,  but  only  from  such  portion  as  the  surety  to  whom 
the  extension  is  granted  was  bound  to  pay.^  As  between 
wrong-doers  there  can  be  no  contribution;  and  hence,  where  a 
landlord  has  allowed  his  tenant  to  enofasre  in  the  sale  of  intoxi- 
eating  liquors  upon  his  premises  in  violation  of  law,  by  reason 
whereof  an  injury  results  to  another,  the  landlord  cannot  com- 
pel the  tenant  to  contribute  any  portion  of  a  judgment  which 
the  landlord  has  been  compelled  to  pay  by  reason  of  the  in- 
solvency of  the  tenant.^ 

» Gastner  V.  Waggoner,  26  O.  S.  450.        »Zeigler  v.  Rommel,  SOW.  L.  B, 

2Ide  V.    Churchill,   14  O.    S.  372;     115. 
Klingensmith  v.  Same,  31  Pa.  St,  460 ; 
Waggener  v.  Dyer,  11  Leigh,  384. 


CHAPTER  30. 


CONVERSION. 


Sec.  462.  Conversion     defined,    and 
when  the  action  lies. 
463.  Parties. 
464  Petition  shall  contain  what, 

465.  Petition  shall  contain  what, 

as  to  demand  and  refusal. 

466.  Petition  for  damages    for 

conversion. 

467.  Petition  for  conversion  of 

oil. 

468.  Petition    by    assignee     to 

whom    goods    were    as- 
signed after  conversion. 

469.  Petition  for  conversion  of 

note  or  bond. 

470.  Petition     where      demand 

must  be  alleged. 


Sec.  471.  Petition  by  guardian  for 
conversion  of  timber  on 
land  of  minor  by  railroad 
company. 
473.  Petition  for  conversion  of 
property  by  a  railroad 
company  —  which  oper- 
ates an  express  company. 

473.  Petition  for  conversion  of 

goods  delivered  to  an- 
other by  virtue  of  a  bill 
of  sale  to  be  sold  and  ap- 
plied in  payment  of 
claims. 

474.  Defenses  to  actions  for  con- 


Sec.  462.  Conversion  defined,  and  when  the  action  lies. — 

One  who  detains  the  goods  of  another  without  cause,  and 
assumes  the  right  to  dispose  of  them,  is  guilty  of  a  conversion 
of  the  same  to  liis  own  use.  A  frivolous  excuse  will  amount 
tea  refusal,  and  demand  and  refusal  2J!q prima  facie  evidence 
of  the  conversion  of  the  goods  by  the  one  so  refusing.^  When 
an  owner  of  property  has  sustained  damages  by  reason  of  an 
unauthorized  or  unlawful  interference  therewith,  he  may  main- 
tain an  action  for  conversion  against  the  wrong-doer.^  If  pos- 
session be  gained  by  trespass,  the  plaintiff,  by  bringing  his 
action  in  this  form,  waives  his  right  to  damages  for  the  tak- 
ing, and  is  confined  to  the  injury  resulting  from  the  conver- 
sion ;  and  if  the  facts  show  a  conversion,  relief  may  be  had 
even  though  it  be  for  possession.'  A  corporation  which  refuses 

Boyce  v. 


1  Charge  in  Canfield  v.  Clark,  un- 
reported case,  Supreme  Court,  No. 
1778;  Railroad  Co.  v.  O'Donaid,  49 
O.  S.  495.    See,  also,  86  N.  H.  311. 

2  Gillat  V.  Roberts,  57  N.  Y.  28 ;  Pease 


V.   Smith,   61    N.  Y.  477; 
Brockway.  31  N.  Y.  490. 

^  Morisli  V.  Jlountain,  23  Minn.  564; 
Washburn  v.  Mendenhall,  21  Minn. 
832. 


430  CONVERSION.  [§  463. 

to  transfer  stock  on  its  books  because  the  person  demanding 
the  same  is  not  entitled  thereto  is  not  liable  for  a  conversion 
thereof.^  But  an  action  may  be  maintained  against  a  corpora- 
tion for  a  conversion  of  its  own  stock.^  Although  a  common 
carrier,  as  a  rule,  is  not  an  insurer  of  property  when  it  has 
done  all  in  its  power  to  deliver  the  same  and  is  unable  so  to 
do,  and  the  property  under  such  circumstances  is  in  its  hands 
merely  as  a  depositary,^  yet  it  may  be  liable  for  conversion 
if  it  carries  goods  to  a  place  other  than  that  to  which  they 
were  consigned:^  and  if  it  injures  property  to  a  greater  ex- 
tent than  its  charges  for  freight,  and  refuses  to  deliver  the 
same  upon  demand  made  by  the  consignee  without  payment 
of  charges,  it  is  also  guilty  of  conversion,*  An  express  com- 
pany is  bound  to  deliver  property  intrusted  to  its  care  with 
all  reasonable  dispatch,  and  is  held  to  this  obligation  with 
great  strictness.''  If  property  is  purchased  from  one  supposed 
to  be  an  agent  Avho  is  not, and  is  again  sold  to  a  third  person, 
the  first  purchaser  is  liable  for  conversion.''  Where  petroleum 
has  been  stored  with  a  storage  company,  such  company  will 
be  liable  for  a  conversion  if  it  refuses  to  deliver  the  oil  on  de- 
mand. If  it  is  so  stipulated  by  contract,  a  counter-claim  for 
evaporation  and  charges  may  be  allowed,  which  cannot  be 
defeated  by  bringing  an  action  in  trover.^  Where  personal 
property  has  been  seized  by  a  sheriff  under  writs  of  attach- 
ment, the  sheriff  and  attaching  creditors  may,  by  virtue  of 
their  right  under  such  proceeding,  maintain  a  general  action 
to  recover  damages  for  the  subsequent  conversion  or  deten- 
tion by  a  stranger.^  The  removal  of  fixtures  from  premises 
does  not  constitute  conversion.^'* 

Sec.  463.  Parties. —  An  administrator  or  executor  may 
maintain  an  action  for  conversion  of  property  of  his  deced- 
ent converted  during  his-life  time ;  ^^  and  it  has  been  held  that 

1  Franklin  Bank  v.  Bank,  36  O.  S.        '  Miami  Powder  Co.  t.  Railroad  Co., 
350 ;  Bank  v.  Bank,  37  O.  S.  208.  But  38  S.  C.  78 ;  s.  c,  16  S.  K  Rep.  339. 
Bee  Railroad  Co.  v.  Rosin,  16  W.  L.  B.        «  Railroad  Co.  v.  O'Donald,  supra. 
423.  "  Haraet  v.  Letcher,  37  O.  S.  356. 

2  Coudouris  v.  Tobacco  Co.,  32  N.  ^  Cow  Run  v,  Lehmer,  41  O.  S.  384. 
Y.  S.  695.  9  Turner  v.  Marienthal,  17  O.  S.  184. 

3  Railroad  Co.  v.  O'Donald,  49  O.  S,  lo  Rowland  v.  Sprauls,  21  N.  Y.  S. 
496.  895. 

*  Railroad  Co.  v.  O'Donald,  supra.       "  Towle  v.  Lovet,  6  Mass.  394;  Man- 


§  464.]  CONVERSION.  431 

an  administrator  may  sue  in  his  own  name,  without  alleging 
his  representative  capacity,  for  a  conversion  of  goods  after  the 
death  of  his  intestate;^  bat  if  the  conversion  took  place  dur- 
ing the  life-time  of  the  decedent,  representative  character 
must  be  averred.-  A  debtor  sending  money  to  a  creditor  by 
an  express  company  may,  if  the  same  is  lost,  sue  the  company 
therefor.^  The  action  may  be  maintained  by  one  who  has 
possession  by  virtue  of  a  bill  of  lading  against  another  who 
does  not  show  a  better  title.^  An  action  for  the  non-delivery 
of  property  may  be  brought  either  by  the  consignor  or  con- 
signee under  a  special  agreement.*  A  lessee  is  the  proper 
person  to  bring  the  action  for  a  conversion  committed  while 
such  lessee  is  in  possession;^  and  so  with  a  bailee  for  goods 
the  subject  of  bailment.'' 

Sec.  464.  Petition  shall  contain  what.—  Some  of  the  old 
requisites  of  the  declaration  are  preserved  in  this  action.  The 
petition  should  unequivocally  state  that  the  plaintiff  is  the 
owner  of  the  property,  although  a  general  allegation  of  own- 
ership has  been  considered  sufficient.^  It  must  be  averred, 
however,  that  the  plaintiff  was  the  owner  at  the  time  of  the 
commencement  of  the  action,"*  as  well  as  at  the  time  of  the 
conversion."'  The  origin  of  the  plaintiff's  right  to  possession 
or  the  derivation  or  precise  nature  of  his  title  need  not  be 
alleged ;  ^^  nor  is  it  essential  that  the  facts  constituting  owner- 
ship be  stated,  as  an  allegation  that  the  plaintiff  was  the  owner 

well  V,  Briggs,  17  Vt.  176:  Eubanks  son.  2  Duer.  318 :  Anderson  v.  Bowles, 

V.  Debb,  4  Ark.  178.  44   Ark.    108  (1884).     An    allegation 

1  Munch  V.  Williamson,  24  Cal.  176 ;  "  that  the  plaintiff  was  lawfully  pos- 

Sheldon  v.  Hoy,  11  How.  Pr.  11.     See  sessed  "  (or  "  was  entitled  to  the  im- 

1  Root,  289.  mediate  possession  of  the  goods  as 

2 Sheldon  v.  Hoy,  supra.  his  property  ")  is  considered  a  suffi- 

3  Bernstine  v.  Express  Co.,  40  O.  S.  cient  statement.     1  Abbott's  Forms 

451.  and  Pleadings,  457. 

*  Adams    v.  O'Connor,    100  Mass.  ^  Denney  v.  Railroad  Co.,  28  O.  S. 

515.  108-9. 

5  Stafford  V.  Walter,  67  111.  83.  lo  Smith  v.   Force,   31    Minn.    119; 

« Triscony  v.  Orr,  49  Cal.  612.  Swope  v.  Paul.  4  Ind.  App.  463  (1891 ) ; 

7  Mizner  v.  Frazier,  40  Mich.  592.  Picquet  v.    McKay,   2   Blackf.  465 ; 

8  Van  Santvoord's    Pldg.,  pp.    213,  Redman  v.  Gould,  7  Blackf.  361. 
274;  Wright  v.  Field,  64  How.  Pr.  117  ii  Swope  v.  Paul,  supra;  Harvey  v. 
(1882) ;  Binnian  v.  Baker,  32  Pac.  Rep.  McAdams,  32  Mich.  473  (1875). 

108  (Wash.,  1893);  Heine  v.  Ander- 


432  •  CONVERSION.  [§  464. 

at  the  time  of  the  couTersion  will  be  sufficient.^  An  allega- 
tion that  a  defendant  has  converted  property  to  his  own  use 
is  one  of  fact  and  not  of  law.- 

As  forms  are  not  ahva^^s  followed,  there  necessarily  have 
been  numerous  adjudications  upon  the  various  forms  of  charg- 
ing conversion.  Merelv  alleo^ino^  an  unlawful  conversion,' 
or  that  the  defendant  took  and  carried  away  goods,*  has 
been  held  sufficient.  And  so  charging  a  railway  company 
with  unlawfully  and  wrongfully  taking,  converting  and  ap- 
propriating property  to  its  own  use,  by  hauling  it  away  and 
using  it  in  its  road,  states  a  good  cause  of  action;^  and  so 
with  an  allegation  that  the  plaintiff  is  the  owner  of  the  prop- 
erty, with  a  description  and  statement  as  to  the  value  thereof, 
and  that  the  defendaat  wrongfully  took  and  converted  it  to 
its  own  use.*  In  an  action  for  conversion  of  stocks  it  is  not 
necessary  to  allege  that  they  have  been  indorsed  so  as  to  en- 
able the  defendant  to  transfer  the  same;  nor  is  it  essential  to 
show  how  or  by  what  means  the  conversion  was  accomplished.' 
A  petition  alleging  that  plaintiff  is  the  owner  of  certain  wood- 
laud  from  which  there  has  been  cut  and  removed  certain  tim- 
ber by  a  person  unknown  and  without  authority,  which  has 
been  taken  and  used  by  a  railroad  company,  states  a  good 
cause  of  action  for  conversion.*  An  allegation  that  a  defend- 
ant has  collected  and  converted  money  belonging  to  the  plaint- 
iff to  his  own  use,  and  that  he  fails  and  refuses  to  pay  the 
same  over,  is  a  sufficient  allegation  to  show  conversion.^  But 
where  one  person  sells  property  for  another,  and  fails  to  prop- 
erly apply  the  proceeds,  there  is  no  conversion  of  property, 

1  Wright  V.  Field,  64  How.  Pr.  117;  sRailway  Co.  v.  Balch,  105  Ind.  93 

Greencastle  v.  Martin,  74  Ind.  453;  (18S5). 

Swift  V.  James,  50  Wis.  540  (1880);  "Robinson  v.   Plow  Co.,   31  Pac. 

Green  V.  Palmer,  15  Cal.  411;  Berney  Rep.  988  (Okla.,  1893);  Railroad  Co. 

V.  Drexel,  63  How.  Pr.  471 ;  Harvey  v.  v.  O'Donnell,  49  O.  S.  4811 

McAdams,  supra;  Jackson  v.  Lum-  "Smith  v.  Thompson,  94  Mich.  881; 

ber  Co.,  45  Wis.  120  (1878).  54  N.  W.  Rep.  168  (1893) ;  Beebe  v. 

2Diiggan  V.  Wright,  157  Mass.  228;  Knapp,  28  Mich.  53;  Hutchinson  v. 

32  N.  E.  Rep.  159  (1893).  Whitraore,  90  Mich.  255;  51  N.  W. 

3  Johnson  v.  Lumber  Co.,  45  Wis.  Rep.  451. 

119;  Edwards  v.  Bank,  59  CaL  136;  «  Railroad  Co.  v.  Hutchins,  37  O.  S. 

Decker  v.  Mathews,  12  N.  Y.  313.  282. 

*  Hutchins  v.  Castle,  48  CaL  153.  9  Sloan  v.  PLailroad   Co.,   33  N.  K 

Rep.  997  (Ind.,  1893). 


§  465.]  CONVERSION.  433 

his  liability  resting  upon  the  conversion  of  the  proceeds.' 
Some  authorities  hold  it  to  be  not  essential  to  the  recovery 
of  damages  for  conversion  that  the  petition  contain  an  aver- 
ment that  the  plaintiff  is  entitled  to  possession  of  tlie  prop- 
erty ,2  while  other  courts  hold  that  either  possession,  right  of 
possession  or  a  demand  of  possession  must  be  alleged.'  A  pe- 
tition which  fails  to  allege  that  plaintiff  was  the  owner  of  the 
property  and  entitled  to  its  possession  at  the  time  of  the  con- 
version certainly  is  demurrable.*  Ordinarily  descriptions  of 
quantity  are  liberally  construed,  but  this  is  not  true  where  it  is 
entirely  uncertain;  hence  it  is  essential  that  the  property  be 
described  with  reasonable  certainty,  though  not  so  accurately 
as  in  detinue.^  It  has  generally  been  considered  unnecessary 
to  allege  the  value  of  the  property,  upon  the  theory  that  the 
same  cannot  be  properly  put  in  issue.* 

Sec.  465.  Petition  shall  contain  what,  as  to  demand  and 
refusal. —  The  prevailing  doctrine  is  that,  where  there  has 
been  an  actual  conversion,  demand  and  refusal  need  not  be 
averred.^  Where  the  original  possession  is  lawful,  a  demand 
and  refusal  may  be  evidence  of  conversion;  but  where  the 
original  possession  is  unlawful,  the  original  taking  consti- 
tutes a  conversion  and  hence  no  demand  is  rtecessary.'  The 
sole  object  of  a  demand  is  to  turn  an  otherwise  lawful  posses- 
sion into  an  unlawful  one  by  reason  of  such  refusal,  and  thus 
supply  evidence  of  a  conversion.*  The  cause  of  action  is  com- 
plete immediately  upon  actual  conversion  without  demand;'** 

iBixell  V.  Bixell,  107  Ind.  534.  471-75  (1882):  Koehring  v.  Aulttnan, 

2  Baals  V.  Stewart,  109  Ind.  371.  34  N.  E.   Rep.  30  (Ind.) ;  Proctor  v. 

3  Binnian  v.  Baker,  32  Pac.  Rep.  Cole,  66  Ind.  576  (1879) ;  Railroad  Ce. 
1008  (Wash.,  1893) ;  Parker  v.  Bank.  v.  O'Donnell.  49  O.  S.  489 ;  Bunger  v. 
64  N.  W.  Rep.  313  (N.  D.,  1892);  An-  Roddy.  70  Ind.  26;  Hon  v.  Hon,  70 
derson  v.  Bowles.  44  Ark.  108 ;  Swope  Ind.  137 ;  Terrell  v.  Butterfield,  92 
V.  Paul,  4  111.  App.  463.  Ind.  1. 

♦Cortelyou  v.  Hiatt,  36  Neb.  584;  ^  Berney  v.  Drexel, -stt/jra;  Pease  v. 

54  N.  W,  Rep.  964  (1893).  Smith,  61  N.  Y.  477 ;  Pugh  v.  Callo- 

5  Edgerly  v.  Emerson.  23  N.  H.  555 ;  way,  10  O.  S.  488,  opinion  on  pp.  493, 

Hall  V.  Burgess,  5  Gray,  12.  494. 

«  Connoss  v.  Meir,  2  E.  D.  Smith,  ^  Pease  v.  Smith,  supra;  Vincent  v. 

314  (1854).     See,  also,  Jonas  v.   Ra-  Coukling,  1  E.  D.  Smith,  203 ;  Glaas- 

hilly,  16  Minn.  320 ;  Jeflferson  v.  Hale,  ner  v.  Wheaton,  2  E.  D.  Smith,  353 ; 

31  Ark.  286;'  2  Wash.  (Va.)  192.  Munger  v.  Hess,  28  Barb.  75. 

'Berney  v.  Drexel,  63  How.  Pr.  w  Brewster  v.  Silliman,  38  N.  Y.  423; 
28 


434 


CONVERSION. 


[§  4:66, 


nor  is  it  necessary  where  a  'bona  fide  purchaser  has  sold  and  de- 
livered goods,''  nor  of  a  constable  where  he  has  seized  the  goods 
of  a  wrong  person,'^  nor  where  money  has  been  deposited  with 
another.^  It  must  be  made,  however,  where  a  party  has  re- 
ceived property  in  good  faith,  ignorant  of  the  want  of  title 
in  the  person  from  whom  he  received  it;^  and  it  should  be 
made  where  there  is  a  bailment,  in  order  to  terminate  the 
same  and  thus  give  rise  to  a  cause  of  action,  unless  there  has 
been  some  wrongful  conversion  or  negligence,  in  which  case 
it  is  unnecessary.^  And  so  where  property  came  into  the 
hands  of  a  person  from  a  wrong-doer;®  or  while  it  is  in  the 
hands  of  the  assignee  for  the  benefit  of  creditors ;  "^  or  where 
the  property  is  in  a  warehouse,  demand  should  be  made  on 
the  owner  thereof.® 

Sec.  466.  Petition  for  damages  for  conversion. — 

Plaintiff  says  that  at  the  time  hereinafter  stated  he  was 
the  owner  of  and  entitled  to  the  immediate  possession  of  the 
following  described  goods  and  chattels,  the  property  of  the 
plaintiff,  to  wit : 

The  undivided  one-fourth  interest  and  share  in  the  shock  in 
thirty-six  acres  of  wheat,  being  the  field  east  of  AV.  and  B. 
turnpike,  and  aJso  the  field  west  of  the  C,  Mt.  Y.  &  C.  rail- 
road next  to  the  lane,  being  upon  the  farm  of  the  defendant 
in  B.,  F.  county   Ohio,  which  was  of  the  value  of dollars. 

That  on  the day  of ,  18 — ,  or  about  that  time,  the 

defendant,  then  and  there  obtaining  the  possession  of  said 
goods  and  chattels,  unlawfully  converted  and  disposed  of  the 
same  to  his  own  use,  to  the  plaintiff's  damage  in  the  sum  of 
dollars,  for  which  he  asks  judgment. 

Note. —  From  Huffman  v.  Wood,  Supreme  Court,  unreported.  No.  1186. 
As  to  necessity  of  demand,  see  ante,  sec.  465 ;  Cobbey  on  Replevin,  sec.  447 ; 
Kennett  v.  Johnson,  2  J.  J.  Marsh.  84.     Immaterial  if  demand  be  not  made 


Hanmer  v.  Willisy,  17  Wend.  91 ; 
Otis  V.  Jones,  21  Wend.  394 ;  Deering 
V.  Austin,  30  Vt  330;  Wooster  v. 
Sherwood,  25  N.  Y.  278;  Gillet  v. 
Roberts,  57  N.  Y.  28;  Koehring  v. 
Aultman,  34  N.  E.  Rep.  30  (Ind.); 
Hon  V.  Hon.  70  Ind.  135-137 :  Bunger 
V.  Roddy,  70  Ind.  26. 

1  Pease  v.  Smith,  61  N.  Y.  477. 

2  Black  V.  Clasp,  32  .Pac.  Rep.  564 
(Cal.);  Boulwarev.  Craddock,  30  Cal. 
190 ;  Murf ree  on  Sheriffs,  sees.  270, 
270a. 


3  Thompson  v.  Vrooman,  21  N.  Y.  S. 
179. 

4  Piano  Mfg.  Co.  v.  Pac.  El.  Co.,  53 
N.  W.  Rep.  202  (Minn.,  1892). 

s  Bassett  v.  Baker,  Wright,  337  ;  Mc- 
Lain  v.  Huffman,  30  Ark.  428 ;  27  Mo. 
549.  See  Wade  v.  Carson,  13  Nev.  49 ; 
Levi  V.  Silverstein,  22  La.  Ann.  363. 

^  Fuller  v.  Lewis,  3  Abb.  Pr.  383. 

"Goodwin  v.  Wertheimer,  99  N.  Y. 
149. 

8  Baumann  v.  Jefferson,  23  N.  Y.  S. 
685. 


§§  467,  468.]  CONVERSION.  435 

upon  oflScer  until  aftei*  expiration  of  his  term.     Brobst  v.  Skillen,   16  O.  S. 
382.     When  conversion  is  only  technical,  and  property  is  in  the  same  con- 


ministrator  may  sue  for  property  converted  before  his  appointment  Jahns 
V.  Nolting,  29  Cal.  507.  The  measure  of  damages  is  the  value  of  the  prop- 
erty at  the  time  of  conversion  with  interest.  Railway  v.  Hutchins,  33 
O.  S.  571 ;  Jefferson  v.  Hale.  31  Ark.  286;  Coffey  v.  Bank,  46  Mo.  140;  Shep- 
ard  V.  Pratt.  16  Kan.  209.  See  17  Pick.  1;  38  Me.  174;  30  Vt  307;  22  Mo. 
394 ;  Railway  Co.  v.  Hutchins,  37  O.  S.  382.  Recovery  cannot  be  had  for  the 
enhanced  value  of  property  by  labor  of  the  wrong-doer.  Railway  Co.  v. 
Hutchins,  supra;  Hyde  v.  Corkson,  21  Barb.  92;  Silabury  v.  McCoon,  4 
Denio,  337 ;  Single  v.  Schneider,  30  Wis.  570.  The  rule  of  damages  is  said 
to  be  determined  by  the  animus  of  the  wrong-doer.  Heard  v.  James,  49 
Miss.  236;  Herdie  v.  Young,  55  Pa.  St.  176;  Coleman's  Appeal,  62  Pa.  St 
252-278.  Expenses  incurred  in  an  action  of  detinue  cannot  be  included  in 
damages.     Ross  v.  Malone,  12  So.  Rep.  182  (Ala.,  1893). 

Sec.  467.  Petition  for  conversion  of  oil. — 

The  said  plaintiff  J.  D.  L.  complains  of  the  said  defendant 

the  C.  E.  T.  Co.  for  that  on  the  day  of ,  18—,  the 

said  plaintiff  was  the  owner  of  and  entitled  to  the  immediate 
possession  of  the  following  described  goods  and  chattels,  to 
wit, barrels  of  crude  petroleum  of  the  value  of dol- 
lars; that  on  the day  of ,  18 — ,  said  defendant,  hav- 
ing obtained  and  then  being  in  possession  of  said  goods  and 
chattels  and  contriving  to  injure  the  said  plaintiff,  did  wrong- 
fully and  unlawfully  convert  and  dispose  of  the  same  to  each 
of  the  said  defendant's  own  use  and  benefit,  to  the  damage  of 
said  plaintiff  in  the  sum  of dollars. 

Wherefore  the  said   plaintiff  prays  judgment  against  said 

defendant  for  the  said  sum  of dollars,  his  damages  as 

aforesaid  sustained. 

NOTR— From  Cow  Run  Co.  v.  Lehmer,  41  O.  S.  384. 

Sec.  468.  Petition  by  assignee  to  whom  goods  were  as- 
signed  after  conversion. — 

That  at  the  time  hereinafter  mentioned  one  C.  D.  was  the 
owner  and  lawfully  in  possession  of  the  following  described 
goods  and  chattels :  [Describe  theiii.'\  Said  goods  were  of  the 
value  of  I . 

On  the day  of ,  18—,  the  defendant  obtained  pos- 
session of  said  goods  and  chattels,  and  unlawfully  and  wrong- 
fully converted  the  same  to  his  own  use,  thereby  damaging 
the  said  C.  D.  in  the  sum  of  $1 . 

That  on  the day  of ,  18—,  said  C.  D.,  for  a  valu- 
able consideration,  duly  assigned  to  the  plaintiff  all  his  claim 
and  demand  agamst  the  defendant  for  said  conversion  and 
damages. 

Plaintiff  therefore  asks  judgment  for  said  sum  of  $ ,  etc. 

Note,—  An  assignee  before  conversion  need  not  set  forth  his  title  in  the 
]t  tition.     Heine  v.  Anderson,  2  Duer,  318.     It  has  been  repeatedly  held  that 


436  CONVERSION.  [§§  469,  470. 

ii  right  of  action  for  conversion  is  assignable.  Final  v.  Backus,  18  Mich. 
218;  Brady  v.  Whitney,  2-4  Mich.  154;  Grant  v.  Smith,  26  Mich.  201;  Smith 
V.  Thompson,  54  N.  W.  Rep.  168 :  94  Mich.  381  (1892). 

Sec.  469.  Petition  for  conversion  of  note  or  bond. — 

On  the day  of ,  18 — ,  one  C.  D.  was  the  owner  of  a 

certain  promissory  note  [or,  bond]  bearing  date  the day 

of  ,  IS — ,  calling  for  the  sum  of dollars  and  payable 

to  the  plaintiff  in months  from  the  date  thereof,  which 

said  note  was  signed  by  the  defendant. 

On  the day  of ,  18 — ,  plaintiff  delivered  the  said  note 

to  said  defendant  upon  the  express  agreement  and  understand- 
ing that,  upon  ascertaining  what  it  could  be  sold  for,  he  would 
either  buy  it  or  pay  said  C.  D.  the  value  thereof,  or  would  re- 
turn the  same  to  him  on  demand. 

On  the day  of ,  18 — ,  and  after  said  defendant  had 

had  possession  of  said  note  [or,  bond]  a  sutRcient  length  of 
time  to  have  enabled  him  to  ascertain  the  value  thereof,  said 
C.  D.  demanded  said  note  [or,  bond]  of  said  defendant  or  its 
value,  but  the  defendant,  while  admitting  that  said  note  [or, 
bond]  was  in  his  possession,  wholly  failed  and  refused  to  re- 
turn it  or  to  pay  the  value  thereof. 

That  the  value  of  said  note  [or,  bond]  was  the  sum  of  $ , 

for  which  said  sum  with  interest  at  per  cent,  plaintiff 

asks  judgment  against  said  defendant. 

NOTK —  An  action  lies  for  conversion  of  a  note.  Hynes  v,  Patterson,  95 
N.  Y.  1.  But  not  where  it  has  been  wrongfully  negotiated  to  a  bono  fide 
holder  before  it  has  any  learal  inception.  Decker  v.  Matthews,  12  N.  Y.  313. 
Where  officer  converts' notes  to  his  own  use  the  measure  of  damages  is  the 
value  of  notes.  Brobst  v.  Skelleu.  16  O.  S.  382.  See  Doolittle  v.  McCullough, 
7  O.  S.  308.  In  an  action  for  conversion  of  notes  it  may  be  as  for  tort  and 
for  monev  had  and  received.  Thayer  v.  Manley,  73  N.  Y.  305 ;  Comstock  v. 
Hier.  29  Am.  Rep.  142 :  73  N.  Y.  269.  The  general  rule  of  damages  of  the 
value  at  the  time  of  conversion  is  not  applicable  to  stocks  and  bonds  which 
are  of  a  fluctuating  character.  Dimock  v.  Bank.  25  Atl.  Rep.  926  (N.  Y., 
1893).  As  to  burden  of  proof  when  plaintiff  proves  that  the  bond  was 
stolen,  see  Bank  v.  Kidder,  13  Abb.  N.  C.  376. 

Sec.  470.  Petition  wliere  demand  must  be  alleged. — 

[Caption.'] 

On  the day  of ,  18 — ,  the  plaintiff  was  the  owner 

of  the  following  described  goods  and  chattels:  [Deselection.] 
Said  goods  were  of  the  value  of  $ . 

That  upon  said  date  plaintiff  intrusted  said  goods  to  plaint- 
iff for  safe-keeping  until  he  should  call  for  them. 

Plaintiff  alleges  that  on  the day  of  ,  18 — ,  he  de- 
manded of  said  defendant  that  he  deliver  said  goods  to  him, 
which  he'whoUy  refused,  and  still  refuses  to  deliver  said  goods 
to  plaintiff,  but'^has  unlawfully  and  wrongfully  converted  the 
same  to  his  own  use,  and  withholds  the  same  from  the  pos- 


§§  471,  472.]  CONVERSION.  437 

session  of  plaintiff,  to  the  damage  of  plaintiff  in  the  sum  of 
NoTR— See  a7ite,  sec.  465. 

Sec.  471.  Petition  by  guardian  for  conversion  of  timber 
on  land  of  minor  by  railroad  company. — 

[Caption.'] 

On  the (lay  of  ,  18 — ,  he  (plaintiff)  was  duly  ap- 
pointed and  qualified  as  guardian  of  the  estate  of  J.  E!  and 

E.  C.  B.,  minors,  by  the  probate  court  of county,  Ohio, 

having  due  authority.     That  on  the day  of ,  IS — , 

said  minor  children  were  the  owners  in  fee-simple  of  the  fol- 
lowing described  real  estate,  situate  in  county,  . 

to  wit :  [Description  of  property  7\ 

Said  land,  when  owned  by  said  minors,  was  thickly  wooded 
with  excellent  timber,  and  was  valuable  on  that  account;  and 
all  or  nearly  all  of  said  timber  was  cut  down  and  removed  by 
persons  now  to  this  plaintiff  unknown,  without  an}^  authority 
whatever,  and  the  same  taken,  used  and  possessed,  for  its  own 
benefit,  without  any  authority  whatever,  by  the  C,  P.  &  A 

E.  E.  Co.,  which  was,  on  or  about  ,  IS — ,  consolidated 

with  certain  other  i-ailroad  companies  under  the  name  and 
style  of  the  L.  S.  k,  M.  S.  E}^  Co.,  which  last-named  company 
is  made  a  defendant  in  this  action,  and  which  said  company 
is  a  corporation  duly  organized  under  the  laws  of ,  etc. 

By  reason  of  the  said  timber  being  taken  from  said  land 
and  converted  to  its  own   use  by  the  said  C,  P.  &  A.  E.  E. 

Co.,  said  minor  children  were  damaged  in  the  amount  of 

dollars,  for  which  sum  ])laintiff  asks  judgment  against  the  de- 
fendant, the  L.  S.  <fe  M.  S.  E.  Co. 

Note. —  Approved  in  Railroad  Co.  v.  Hutchins.  37  O.  S.  282,  as  stating  a 
cause  of  action  for  personal  property.  See  sec.  464.  The  measure  of  dam- 
ages is  the  value  of  the  timber  at  the  time  it  was  severed  from  the  land. 
Hulett  V.  Fairbanks,  1  O.  C.  C.  155. 

Sec.  472.  Petition  for  the  conversion  of  property  by  a 
railroad  company  which  operates  an  express  company. — 

Plaintiff  for  his  cause  of  action  herein  says  that  the 

Eailroad  Company  is,  and  had  been  for  a  longtime  prior  to  the 
commission  of  the  grievances  and  wrongs  hereinafter  men- 
tioned, a  corporation  duly  incorporated  under  the  laws  of  the 

state  of ,  and  as  such  corporation  has   been  all  that  time. 

and  is  now,  running  and  operating  numerous  lines  of  railroads 

in as  common  carriers  of  freight  and   passengers;  [o/', 

where  a  particular  line  is  specified]  and  among  others,  it  has 

run  and  operated  the  railroad  known  as ,  extending  from 

to . 

That  before  and  at  the  time  of  the  commission  of  the  wrongs 
hereinafter  complained   of,  the  said Eailroad  Company 


4:38  CONVERSION.  [§  472. 

was,  and  ever  since  has  been,  and  still  is,  carrying  on  and  op- 
erating in  connection  with  and  upon  and  along  the  said  rail- 
road operated  by  it  as  aforesaid,  including  said {^particu- 
lar line  specified'],  a  general  express  business  as  common 
carriers  of  package,  freight  and  merchandise  for  hire,  under 

the  name  of ,  and  making  contracts  and  receiving  freight 

and  merchandise  from  other  companies,  corporations  and  per- 
sons, and  receipting  therefor  by  and  under  that  name,  and 
forwarding  and  carrying  the  same  to  the  properly  designated 
place  of  delivery. 

{Allegation  where  express  company  operates  in  the  name  and 
for  the  railroad  corapany:'\ 

That  on  and  prior  to  the day  of ,  18 — ,  the Ex- 
press Company  was  a  corporation  duly  incorporated,  and  as 
such  run  and  operated  an  expressage  as  a  common  carrier  for 
hire  of  packages,  freight  and  merchandise  from  the  city  of 
to  the  city  of . 

That  it  was,  and  has  been  ever  since  before  the day  of 

18 — ,  and  is,  customary  and  the  duty,  by  virtue  of  some 


contract  and  arrangement  between  said Express  Com- 
pany and  iJae  Eailroad  Company,  under  the  name  of 

Express  Company  [the  terms  of  which  the  plaintiff  does 

not  know  and  cannot  state],  for  said Eailroad  Company, 

under  the  name  of Express  Company,  to  receive  pack- 
ages of  freight  and  merchandise  shipped  over  said Ex- 
press Company's  line  by  it,  at {place  of  receimng  goods\ 

and  forward  the  same  as  common  carriers  by  express  for  hire 

to  points,  including  said  city  of {place  of  destination  of 

goods],  along  its  said  railroad  that  were  not  reached  by  said 

Express  Company. 

That  on  or  about ,  18 — ,  the  plaintiff  at was  the 

owner  of  the  following  property,  to  wit, ,  of  the  value  of 

hundred  dollars.  That  on  or  about 18 — ,  said  plaint- 
iff, for  the  purpose  of  shipping  said  property  above  described 

from to above  stated,  delivered  said  property  to  the 

Express  Company  at ,  who  received  the  same  to  be 

transported  by  it  to  its  agenc}^  at ,  the  nearest  or  most 

convenient  point  to  the  place  of  destination  of  said  goods  and 
property  at ,  and  there  at  said  city  of to  be  deliv- 
ered to  the  defendants  to  complete  the  transportation  as  such 

common  carriers  by  express  to .     That  in  pursuance  of 

its  said  duty  as  such  common  carrier  the  said Express 

Company  did  transport  said  property  above  described  from 

said  city  of to  its  agency  at ,  and  there,  on  or  about 

the day  of ,  18 — ,  for  the  purpose  and  with  the  in- 
tent of  having  said  property  transported  to  its  destination  at 

,  it  transferred  and  delivered  said  property  to  the  said 

Railroad  Company  under  and  in  said  name  of  the 

Express,  and  said  Railroad   Company  did  under  said 


§  473.]  CONVERSION.  439 

name  of  the Express  receive  said  property  as  such  com- 
mon carriers  by  express  from  said Express  Company  at 

its  agency  at  - — ,  under  and  by  virtue  of  its  said  custom, 

contract  or  arrangement  between  it  and  said Express 

Company  aforesaid  (the  kind  and  terms  of  which  are  unknown 
to  the  plaintiff,  and  which  he  therefore  cannot  state),  for  the 

purpose  of  transporting  said  property  from ,  over  its  said 

railroad,  to  said  city  of . 

That  said  defendants  having  received  said  property  for  the 
purposes  aforesaid,  and  with  the  promise  to  forward  and  trans- 
port said  property  from to ,  wilfully  and  unlawfully, 

negligently  and  without  proper  cause,  but  with  the  intention 
to  unlawfully  deprive  the  plaintiff  of  the  same,  would  not  and 

did  not  transport  said  goods  and  property  to as  by  their 

obligation  aforestated  they  were  bound  to  do,  and  it  did  not 
and  would  not  deliver  said  goods  to  the  plaintiff,  but  pur- 
posely, maliciously  and  negligently,  and  for  the  ]jurpose  of 
depriving  the  plaintiff  of  the  same,  hid  and  concealed  said 
property,  while  they  have  falsely  asserted  that  they  have  sent 

said  goods  to ,  and  said  defendants  have  unlawfully  and 

corruptly  embezzled  said  property,  and  still  embezzle  and 
conceal  the  same,  falsely  declaring  and  pretending  that  they 
do  not  know  where  the  same  or  any  part  thereof  is,  to  the 

damage  of  the  plaintiff  in  the  sum  of dollars,  for  which 

sum,  with  interest  thereon  from ,  18 — ,  the  plaintiff  de- 
mands a  judgment  against  said  defendants,  and  asks  for  all 
other  and  proper  relief. 

Note.—  From  B.  &  O.  R.  R  Co.  v.  O'Donnell,  49  O.  S.  489.  Where  there 
is  a  inisdeUvery  of  goods  by  a  carrier  it  is  liable  for  conversion.  Price  v. 
Railroad  Co.,  10  Am.  Rep.  475 ;  Clafiin  v.  Railroad  Co.,  7  Allen,  341.  A  com- 
mon carrier  to  which  goods  are  intrusted  to  carry  to  a  designated  place,  but 
which  transports  them  to  a  different  place  for  the  purpose  of  keeping  them 
out  of  the  possession  of  the  consignee,  is  guilty  of  conversion.  Id,  See  Fish 
V.  Ferris,  5  Duer,  49;  Lucas  v.  Trumball,  15  Gray,  806  ;  Wheelock  v.  Wheel- 
wright, 5  Mass.  104;  Brewster  v.  Silliman.  38  N"  Y.  423.  Delay  in  delivery 
may  sometimes  be  excused  by  proof  of  misfortune  or  accident,  even  though 
not  caused  by  act  of  God.  Kinnick  v.  Railroad  Co.,  27  Am.  &  Eng.  R  R  Cases, 
15 :  Greismer  v.  Railroad  Co..  2(5  Am.  &  Eng.  R  R.  Cases,  278  ;  Pittsburg  Rail- 
road V.  Hallowell,  65  Ind.  188.  But  the  contract  must  be  completed  as  soon  as 
impediment  to  transportation  is  removed.  Railroad  Co.  v.  O'Donnell,  supra. 
A  common  carrier  who  refuses  to  deliver  goods  to  consignee  until  the  lat- 
ter pays  a  sum  larger  tlian  is  stipulated  in  contract  for  freight  is  guilty  of 
conversion.  Isham  v.  Greenham,  1  Handy,  358.  If  the  company  refuses  to 
deliver  to  the  proper  person,  and  the  goods  ai'e  destroyed  by  fire  while  in 
the  warehouse,  it  is  liable.  Meyer  v.  Railroad  Co.,  24  Wis.  566;  s.  C,  1  Am. 
Rep.  207. 

Sec.  473.  Petition  for  conversiou  of  goods  delivered  to 

another  hy  virtue  of  a  bill  of  sale  to  be  sold  and  applied  In 

payment  of  claims. — 

On  the day  of ,  18 — ,  plaintiff  was  the  owner  of  a 

stock  of  merchandise  and  five  horses  worth  more  than  $ , 

and  on  said  date,  for  the  purpose  of  securing  the  said  defend- 


440  CONVERSION.  [§  473. 

ant  to  become  a  bondsman  in  the  case  of against 

this  plaintiff,   then    pending   in   the   court  of  ,  for  the 

purpose  of  releasing  a  levy  made  upon  said  property,  plaintiff 
entered  into  an  agreement  to  give  said  defendant  a  bill  of  sale 
of  said  property;  and  it  was  ifurther  expressly  agreed  by  and 
between  plaintiff  and  defendant  that  said  defendant  should 
take  possession  of  said  goods  and  horses  and  control  same,  and 
abide  a  trial  or  compromise  of  said  suit  of  S.  v.  plaintiff;  that 
upon  final  determination  thereof  defendant  was  to  pay  him- 
self for  all  liability  incurred  by  reason  of  said  above-mentioned 
bond,  all  his  expenses  and  a  fair  compensation  to  himself  for 
his  trouble  and  service ;  that  the  balance  of  said  property  was 
to  be  turned  over  to  said  plaintiff,  or  that  if  at  any  time  after 
final  determination  of  said  suit  the  plaintiff  should  desire  to 
take  back  said  goods  and  horses  or  what  were  left  thereof,  it 
was  expressly  agreed  by  plaintiff  and  defendant  that  defend- 
ant would  deliver  said  goods  and  horses,  or  so  much  as  had 
not  been  sold,  upon  the  following  conditions,  to  wit:  Defend- 
ant should  be  credited  with  whatever  amount  he  was  liable 
on  said  bond,  his  expenses  and  outlays,  and  a  fair  compensa- 
tion for  his  services,  and  be  debited  with  all  the  goods  and 
horses  sold,  which  defendant  agreed  should  be  sold  in  the  usual 
way  at  a  fair  market  price,  and  that  upon  thus  ascertaining 
the  amount  due  to  the  defendant  from  said  plaintiff  and  the 
payment  of  the  whole  of  said  sum,  defendant  should  turnover 
all  of  said  property  remaining  in  his  hands. 

In  pursuance  of  said  contract,  and  in  order  that  defendant 
might  have  full  control  over  said  property  and  not  be  impeded 
in  the  sale  of  the  same,  plaintiff  executed  to  said  defendant 
said  absolute  bill  of  sale  according  to  his  part  of  the  contract. 

Afterwards  on  the day  of  ,  IS — ,  said   suit  of  S. 

against  plaintiff  was  settled.  By  the  terms  of  settlement 
there  was  found  due  the  said    S.  by  agreement   from   this 

plaintiff  the  sura  of  I ,  and  one-half  the  costs  of  said  suit, 

taxed  at  $ . 

.  Plaintiff  further  says  that  after  the  settlement  of  said  suit 
this  plaintiff  went  to  said  defendant  and  asked  him  to  turn 
over  to  him  the  portion  of  the  above-mentioned  property  re- 
maining unsold,  and  offered  to  pay  defendant  the  full  sum 
that  should  be  found  due  him  on  settlement,  in  accordance 
with  the  terms  of  the  above-mentioned  contract  between 
plaintiff  and  defendant.  "Whereupon  said  defendant  wholly 
repudiated  said  contract  and  denied  same,  and  refused  to  set- 
tle with  this  plaintiff  on  any  terms  or  in  any  way,  and  refused 
to  give  him  possession  of  said  property  upon  any  terms  what- 
ever. 

Defendant  has  from  ever  since  and  now  is  selling  and  con- 
verting said  property  to  his  own  use. 

Plaintiff  says  thai  said  property  was  worth  at  least  $ , 


§  474.]  CONVERSION.  441 

that  said  defendant  has  made  in  profits  from  the  sale  of  siid 
goods  at  retail  more  than-his  expenses  and  outlays  incurred  in 
selling  the  same.  The  sum  of  dollars  is  a  large  compen- 
sation to  defendant  for  all  his  services  in  said  matter.  That 
by  reason  of  his  liability  on  said  bond  the  defendant  will  have 

to  pay  about  the  sum  of  $ ;  that  defendant  has  converted 

the  whole  of  said  property  to  his  own  use. 

Wherefore  plaintiff  asks  judgment  against  said  defendant 
for  the  sum  of  $; and  interest,  and  for  all  proper  relief. 

Note.  —  Modeled  from  Canfield  v.  Clark.  Supreme  Court,  unreported 
case,  No.  1778. 

Sec.  474.  Defenses  to  actions  for  conversion.—  An  action 
cannot  be  maintained  against  a  treasurer  for  conversion  of  an 
order  on  the  treasury  which  the  holder  has  deposited  and  re- 
ceived credit  therefor  in  the  bank,  and  which  has  been  satis- 
fied by  giving  credit  to  the  bank  upon  its  checks  then  held  by 
the  treasurer;'  nor  can  it  be  maintained  against  a  bank  for 
its  failure  to  transfer  stock  where  the  plaintiff  is  not  entitled 
to  such  transfer.-  Where  a  mortgagor  in  possession  of  mort- 
gaged goods  makes  an  assignment  thereof  for  the  benefit  of 
creditors,  and  the  assignee  assumes  charge  of  the  same  under 
authority,  of  law,  the  mortgagee  cannot  sustain  an  action 
against  the  assignee  for  conversion.'  A  defendant  in  such  an 
action  cannot  urge  as  a  defense  that  the  property  has  been 
taken  from  him  by  a  third  person  by  legal  process  or  other- 
wise.^ Nor  is  the  fact  that  title  to  property  is  in  a  third  per- 
son any  defense,  unless  the  defendant  is  in  some  way  connected 
with  such  third  person  and  can  claim  under  him  ;^  nor  can 
the  motive  or  good  faith  of  the  defendant  be  set  up  as  a  de- 
fense;^ nor  that  he  was  mistaken  as  to  the  ownership  of  the 
property.^  A  general  denial  traverses  not  only  the  conver- 
sion, but  also  the  plaintiff's  title,  and  hence  a  defendant  may 
under  such  a  pleading  show  the  source  from  which  he  claims 

J  Miles  V.  Reiniger,  39  O.  S.  499.  17  Wis.  5o0 ;  Ingrahani  v.  Hammond, 

2  Bank  v.  Bank,  36  O.  S.  350.  1  Hill,  353. 

■^Lindeman  v.  Ingham.  36  O.  S.  1.  ''Railroad  Co.  v.  O'Donneli,  supra; 

*  Watson  V.  Goburn,  35  Neb.  492 :  Robinson  v.  Bird,  33  N.   E.  Rep.  391 

53  N.  W.  Rep.  477  (1892).     See  Rail-  (Mass.,   1893);  Dickson   v.   Caldwell, 

road  Co.  v.  O'Donneli,  49  O.  S.  489.  15  O.  S.  412. 

5  Brown  v.   Shaw,    51    Minn.    266  '  Timber  &  Iron  Co.  v.  Cooperage 

(1892) ;  Weymouth  v.  Railroad   Co.,  Co.,  20  S.  W.  Rep.  566  (Mo.,  1892). 


442  CONVERSION.  [§  474 

title  or  that  he  has  no  title ;  ^  or  that  the  property  belonged 
to  a  third  person  who  transferred  it  to  plaintiff  without  con- 
sideration and  with  intent  to  cheat  such  third  person,'^  or  that 
the  defendant  has  a  mortgage  on  the  property.^  A  general 
denial  and  justification,  however,  are  inconsistent,  and  there- 
fore cannot  be  made  in  the  same  pleading;*  nor  can  the  de- 
fendant show  under  a  general  denial  that  a  promise  supporting 
a  bill  of  sale  was  an  unlawful  preference.' 

i  Brevoorfc  v.  Brevoort,  8  J.  &  S.        2  Swope  v.  Paul,  4  Ind.  App.  463. 
211;  Robinson  v.  Frost,  14  Barb.  536;        «Schoenrock  v.  Farley,  17  J.  &  S. 

Jones  V.  Rahilly,  16  Minn.  320 ;  Davis  303. 

V.   Warfield,   38  Ind.   461 ;  Davis  v,        *  Zimmerman    v.    Lamb,  7  Minn. 

Hoppock,  6  Duer,  354 ;  Thompson  v.  421. 
Sweetser,  43  Ind.  313.  6  Boyle  v.  Williams,  30  N.  Y.  a  727. 


i 


CHAPTER  31. 

DEEDa 


Sec.  475.  Parties  to  actions  on  cove- 
nants. 

476.  Pleading  in  such  action. 

477.  Pleading    in  actions   upon 

covenants  of  seizin. 

478.  Petition  for  breach  of  cove- 

nant of  seizin. 

479.  Petition  for  breach  of  cove- 

nant as  to  quantity  of 
land. 

480.  Pleading   in  actions  upon 

covenants  against  incum- 
brances. 

481.  Petition    by  administrator 

for  breach  of  vs^arranty  as 
to  incumbrances,  vphere 
owner  has  been  ousted  by 
foreclosure,  etc. 

482.  Short    form     of     petition 

for  breach  of  covenants 
against  incumbrances. 

483.  Petition  for  breach  of  cove- 

nant against  incum- 
brances, on    account    of 


unpaid  taxes  and  to  re- 
cover the  amount  paid. 
Sec.  484.  Pleading  in  actions    upon 
covenants  of  warranty. 

485.  Petition     by     assignee    of 

grantee    against  grantor 
on  covenant  of  warranty. 

486.  Petition     by     devisee    or 

grantee  against  grantor 
on  covenant  of  warranty. 

487.  Actions  upon  other  cove- 

nants. 

488.  Petition  for  breach  of  cove- 

nant of  quiet  enjoyment 

489.  Petition    by    assignee    for 

breach   of    covenant    iu 
lease  to  insure. 

490.  Petition  for  breach  of  cove- 

nant of  grantee  to  build. 

491.  Defenses   to   actions  upon 

covenants  generally. 

492.  Answer  setting  up  want  of 

title  as  against  note  for 
purchase-money. 


Sec.  475,  Parties  to  actions  on  covenants. —  Covenants  in 
deeds  respecting  title  which  are  not  broken  when  the  land 
descends  to  the  heij*,  or  which  have  passed  to  the  assignee,  run 
with  the  land,  and  upon  a  breach  the  heir,  assignee  or  grantee 
who  is  injured  thereby  is  the  proper  party  to  bring  an  action 
against  the  warrantor.^  If  the  grantor  is  in  possession  under 
color  of  title,  the  covenant  of  seizin  is  annexed  to  and  runs 
with  the  land,  and  therefore  ]>asses  to  the  heir  or  assignee, 
who  may  maintain  an  action  when  ousted  by  paramount  title. 
But  if  the  grantor  is  not  in  possession  the  covenant  is  broken 

iKing  V.  Kerr,  5  O.  156;  Wyraan  v.  Ballard,  12  Mass.  304;  6  Conn.  497; 
5  Cowen,  187. 


444  DEEDS.  [§  476. 

as  soon  as  made  and  does  not  pass  with  the  land,  but  becomes 
a  mere  chose  in  action,  passing  to  the  personal  representative 
of  the  first  grantee.^  An  action  on  a  covenant  against  incum- 
brances, broken  during  the  life-time  of  an  ancestor,  should  be 
brought  in  the  name  of  the  personal  representative  and  not  that 
of  the  heir.^  Where  a  covenant  is  divisible  in  its  nature,  as  if 
the  entire  interest  in  separate  parts  of  land  passed  to  different 
individuals,  a  right  of  action  accrues  to  each  party.^  An 
assignee  of  a  reversion  to  whom  the  benefits  of  a  lease  are 
assigned  may  bring  an  action  in  his  own  name  for  a  breach 
of  covenants  therein.^  Where  a  deed  made  in  trust  for  the 
benefit  of  another  contains  covenants  of  seizin,  warranty,  and 
against  incumbrances,  which  are  broken  at  the  time  of  its 
execution,  the  party  for  whom  the  conveyance  is  made  may 
bring  an  action  in  his  own  name,  although  such  covenants  did 
not  pass  to  him  by  the  mere  conveyance  and  have  not  been 
assigned."  The  right  of  a  covenantee,  in  an  action  for  the 
recovery  of  purchase-money,  to  make  any  person  claiming  an 
adverse  interest  a  party,  exists  only  where  there  has  been  a 
breach  of  the  covenants  in  the  deed.* 

Sec.  476.  Pleading  in  such  actions. —  In  pleading  breaches 
of  a  covenant  in  a  deed,  or  in  any  action  founded  thereon,  it 
is  not  good  practice  in  Ohio  to  set  out  a  copy  of  the  deed,  nor 
to  attach  a  copy  and  make  it  part  of  the  petition  by  refer- 
ence. Such  a  course  unnecessarily  incumbers  the  record,  and 
is  a  gross  violation  of  the  provision  of  the  code  requiring  the 
statement  of  the  cause  of  action  to  be  set  forth  in  plain  and 
concise  languaije.  as  well  as  a  violation  of  the  rule  as  to  at- 
taching  copies  which  has  so  often  been  referred  to  in  this 
work.'  But  if  it  is  necessary,  in  setting  out  the  breach,  to 
substantially  set  forth  the  covenants,  such  practice  is  proper.® 

1  Backus     V.     McCoy,    3    O.    211.  2  Frink  v.  Bellis,  33  Ind.  135 ;  8.  c, 

Where  covenants   which   run   with  5  Am.  Rep.  193. 

the  laud  are  broken  after  the  land  3  St.  Clair  t.  Williams,  7  O.  (Pt  2), 

has  been  assigned,  the  assignee  can  111. 

alone  bring  an  action   thereon.     If,  *Masury  v.  Southworth,  90.  S.  840* 

however,  the  grantor  or  assignor  is  ^  Hall  v.  Plaiue,  14  O.  S.  417. 

bound    to    indemnify    the    assignee  ^  Cincinnati  v.  Brachman,  35  O.  S. 

against    such    breach,    then   the  as-  289. 

signor   must  bring    the    action.     14  "^  Ante,  sees.  57,  58,  152,  296,  847. 

Johns.  89.     See  5  Cow,  137 ;  1  Conn.  *  Ante,  sec.  57 ;  Crawford  v.  Satter- 

244;  2  Pa.  St.  514.  field,  27  O.  S.  421;  R  S.,  sec.  5086; 


§  477.]  DEEDS.  445 

If  more  desirable,  the  covenants  may  be  copied  into  the  plead- 
ing- and  their  breach  assigned  generally  by  negativing  the 
terms  thereof.' 
See.  477.  Pleading  in  actions  upon  covenants  of  seizin. — 

A  covenant  of  seizin  covenants  that  a  grantor  is  possessed  of 
the  estate  in  quantity  and  quality  which  he  assumes  to  con- 
vey.- It  is  not  a  contract  in  which  the  immediate  parties 
alone  are  interested,  but  is  intended  for  the  security  of  all 
subsequent  grantees,  and  is  usually  extended  to  the  heirs,  as- 
signee and  executors.^  There  is  almost  an  equal  division  of 
authority  upon  the  question  as  to  when  such  a  covenant  is 
broken.*  It  is,  however,  a  well-settled  rule  of  property  in 
Ohio  that  it  is  not  broken  until  eviction,  either  actual  or  con- 
structive, where  the  grantor  was  in  actual  possession  at  the 
time  of  the  conveyance.^  If  the  grantor  be  not  in  possession 
at  the  time  of  the  conveyance,  then  the  covenant  is  personal 
and  is  instantly  broken,  and  becomes  a  chose  in  action  en- 
titlmg  the  grantee  to  maintain  an  action  thereon.  A  sub- 
sequent grantee  cannot  sustain  an  action  thereon,  and  in  case 
of  death  of  the  first  grantee,  the  right  of  action  passes  to  the 
personal  representative.®  It  is  therefore  necessary,  in  bring- 
ing an  action  upon  this  class  of  covenants,  that  the  petition 
aver  that  the  grantor  was  not  in  fact  seized  at  the  time  of 
the  execution  of  the  deed,  as  a  breach  is  not  sufficiently 
shown  by  merely  negativing  the  legal  seizin  of  the  grantor  at 
the  time  of  making  the  covenant.'    Before  the  adoption  of 

McCaiupbell  v.  Vastine,  10  la.  538 ;        '  Backus  v.  McCoy,  supra;  Great 

Gvvynae  v.   Jones,  5  O.  C.  C.  298.  Western  Stock  Co.  v.  Saas,  24  O.  S. 

The    instrument    attached    to    the  542-9;  Robinson  v,   Neil.  3   O.  525; 

pleading  forms  no  part  of  it     Larri-  Foote  v.  Burnett,  10  O.  317 :  De  Vore 

more  v.  Wells,  29  O.  S.  13.  v.  Sunderland,  17  O.  52 ;  Stambaugh 

1  Bacon  v.  Lincoln,  4  Cush.  210;  v.  Smith,  33  O.  584;  Dickinson  v, 
a  a,  50  Am.  Dec.  765.  Although  Desire,  23  Mo.  152 ;  Stills  v.  Hobbs,  2 
this  rule  does  not  apply  to  covenants  Disn.  571 ;  Richard  v.  Bent,  59  IlL 
of  seizin.     See  post,  sec.   477.     See,  38;  s.  a,  14  Am.  Rep.  1. 

also,  ante,  sec.  435.  e  Devorc  v.  Sunderland,  17  O.  52 ; 

2  Backus  V.  McCoy,  3  O.  211 ;  s.  C,  Vail  v.  Railroad  Co..  1  C.  S.  C.  R  571. 
17  Am.  Dec.  585  ;  Pecarev.  Chouteau.  See  ante,  sec.  475 ;  Chapman  v.  Kim- 
13  Mo.  527 ;  Greenby  v,  Wilcocks,  2  ball,  7  Neb.  399 ;  Davidson  v.  Cox,  10 

-Johns.  1 ;  s.  C,  3  Am.  Dec.  379.  Neb.  150 :  Betz  v.  Bryan,  39  O.  S.  322. 

'  Backus  V.  McCoy,  supra.  7  Stambaugh  v.  Smith,  supra, 

«  5  Lawson,  R  &  R.,  sec.  2290. 


446  DEEDS.  [§  478. 

the  code  it  was  proper,  in  an  action  for  a  breach  of  a  cove- 
nant of  seizin,  to  allege  the  same  by  simply  negativing  the 
words  of  the  covenant ;  but  as  the  code  made  no  exception  in 
this  respect,  it  is  therefore  necessary  to  set  forth  the  facts 
constituting  the  breach  in  plain  and  concise  language.^  A 
purchaser  in  an  action  for  breach  of  a  covenant,  caused  by 
want  of  title,  for  the  recovery  of  the  purchase-money,  cannot 
be  compelled  to  accept  a  title  which  his  grantor  may  then 
have.- 

Sec.  478.  Petition  for  breach  of  covenant  of  seizin. — 

On  the day  of ,  18 — ,  plaintiff  purchased  from  the 

defendant  the  following  premises  situate  in  the  county  of 

and  state  of  Ohio,  described  as  follows:  [Desc?'iption.']  That 
plaintiff  paid  said  defendant  for  said  premises  the  sum  of 

$ ,  and  said  defendant  executed  and  delivered  to  plaintiff 

his  certain  warranty-deed  executed  by  said  defendant  and 
C  D.,  his  wife,  on  the  day  of  ,  18 — ,  thereby  con- 
veying said  premises  to  this  plaintiff  in  fee-simple. 

That  among  the  covenants  contained  in  said  deed  and  en- 
tered into  by  said  defendant  was  the  following :  [Copy  covenant 
complained  of.'j 

That  at  the  time  of  the  execution  and  delivery  of  said  deed 
by  said  defendant  to  this  plaintiff  said  defendant  was  not  pos- 
sessed of  nor  was  he  the  owner  of  a  good  and  sufficient  title 
to  said  premises  above  described,  but,  on  the  contrary,  one 
E.  E.  was  the  true  and  lawful  owner  of  a  title  paramount  ta 
that  of  said  defendant,  and  that  by  reason  of  said  paramount 
title  so  owned  by  said  E.  F.  this  plaintiff  was  ousted  and  dis- 
possessed of  said  premises  by  due  course  of  law  by  the  said 
E.  F.,  and  that  the  covenant  so  made  as  hereinbefore  stated 
has  been  wholly  broken  by  the  said  defendant.  That  by  reason 
of  the  premises  and  of  the  facts  herein  stated  and  of  the 
breach  of  covenant  by  said  defendant,  plaintiff  has  sustained 

damages  in  the  sum  of  $ ,  for  which  sum   with  interest 

from he  prays  judgment  against  said  defendant. 

Note. —  See  formal  parts  in  sec.  481.  If  the  covenantor  is  in  possession 
his  covenant  of  seizin  runs  with  the  land.  If  not,  and  the  title  is  defective, 
it  does  not  attach  to  the  land,  but  is  personal  and  is  broken  as  soon  as  made^ 
Backus  V.  McCoy,  3  O.  211  (1827);  Gest  v.  Kenner,  2  Handy,  87;  Betz  v. 
Bryan,  39  O.  S.  322.  The  consideration  paid  and  interest  is  the  rule  of  dam-^ 
ages  in  such  a  case.  Id.  It  is  the  well-established  law  that  a  covenant  of 
seizin  in  a  deed  is  not  broken,  where  the  grantor  is  in  actual  possession  of 
the  land  under  color  of  title  when  the  deed  is  executed,  and  the  grantee 
enters  under  it,  until  such  grantee  is  evicted.  Betz  v.  Bryan,  39  O.  S,  322; 
Lane  v.  Fury.  31  O.  S.  574;  Devore  v.  Sunderland,  17  O.  52;  Foote  v.  Bur- 
nett, 10  O.  317 ;  Robinson  v.  Neil,  3  O.  525;  Backus  v.  McCoy,  3  O.  211.     An 

1  Woolley  v.  Newconobe,  58  How.        2  Resser  v.  Carney,  52  Minn.  397 ; 
Pr.  480.  B.  c,  54  N.  W.  Rep.  89  (1893). 


§§  479, 480.]  DEEDS.  447 

allegation  that  a  defendant  is  not  lawfully  seized  casts  upon  him  the  burden 
of  proof.  Blackshire  v.  Homestead  Co..  89  Iowa,  624;  Schofield  v.  Same,  33 
Iowa,  317 ;  Barker  v.  Kuhn,  38  Iowa,  892.  See  Mecklem  v.  Blake,  16  Wis. 
103 ;  s.  c,  82  Am.  Dec.  707.  Necessary  costs  incurred  in  defending  the  title, 
including  reasonable  attorneys'  fees,  may  be  recovered.  Mercantile  Trust  Co. 
V.  a  P.  Residence  Co.,  22  S.  W.  Rep.  314  (Ky.,  1893).  If  only  a  technical 
breach,  nominal  damages  only  can  be  recovered.  Nozzlen  v.  Hunt,  18  Iowa, 
212  (1865). 

Sec.  470.  Petition  for  breach  of  corenant  as  to  quantity 
of  land. — 

On  the day  of ,  18 — ,  said  defendant,  in  considera- 
tion of  the  sum  of  $ then  paid  by  this  plaintiff  to  said 

defendant,  conveyed  to  the  plaintiff  the  following  described 
lands  situate,  etc. :  {Describe  lands.']  That  in  his  deed  of  con- 
veyance, executed  and  delivered  to  the  plaintiff,  among  other 
things  said  defendant  covenanted  and  warranted  said  [farm] 

to  contain acres  of  land,  a  copy  of  which  covenant  is  as 

follows :  [  Copy  coveyiant.'] 

That  said  farm  contained  but acres  of  land,  and  the 

defendant  by  said  deed  conveyed  to  the  plaintiff,  by  said  con- 
veyance, only  acres,  instead  of acres,  as  by  him 

covenanted  and  warranted  that  he  did  convey ;  and  that  by 

reason  thereof  the  plaintiff  has  been  deprived  of acres 

of  land  warranted  in  said  deed,  and  has  sustained  damages  in 
the  sum  of  $ ,  etc. 

Note.—  See  ante,  sec.  477 ;  Maxwell  on  Code  Pldg.,  p.  87.  See,  also,  form 
of  commencement  in  sec.  481. 

Sec.  480.  Pleading  in  actions  upon  covenants  against  in- 
cumbrances.—  In  an  action  upon  a  covenant  against  incum- 
brances, it  is  not  necessary  to  aver  and  prove  eviction,  as  the 
same  is  broken  as  soon  as  an  incumbrance  in  fact  exists,  upon 
which  a  right  of  action  immediately  accrues  to  the  grantee,  at 
least  for  nominal  damages;  and  to  recover  actual  damages  it 
must  be  shown  that  the  legal  title  to  the  outstanding  estate 
has  been  extinguished.^  The  action  will  lie  whether  the  in- 
cumbrance is  first  paid  or  not.^  Incumbrances  known  to  the 
parties  at  the  time  of  the  conveyance  are  not  presumed  to  be 
excluded  from  the  operation  of  such  covenant.  So  taxes 
which  are  a  lien  fall  within  a  covenant  against  incumbrances 
entitling  a  grantee  to  an  action  thereon.^    Where  a  covenant 

iStambaiuli  v.  Smith,  23  O.  S.  588;  Logan  v.  Moulder,  33  Am.  Dec  38a 

Stow  V.  Gilbert,  1  Clev.  Rep.  172.    See  See  Stites  v.  Hobbs,  1  C.  S.  C.  R  571 

Foote  V.  Burnett,  10  O.  317 ;  S.  C,  36  (1859,  Hoadley,  J.). 
Am.  Dec.  90;  Andrews  v.  Dawson,        ^Nesbitt  v.  Campbell,  5  Neb.  482, 
17  N.  H.  413;  a  C,  43  Am.  Dec.  606;        3  Long  v.  Moller,  5  O.  S.  37a 


44:8  DEEDS.  [§  481. 

against  incumbrances  is  broken  by  reason  of  a  dower  interest 
therein,  the  phiintiff  must  allege,  in  an  action  thereon,  that  the 
same  has  been  assigned  according  to  law.^  An  action  upon  a 
covenant  against  incumbrances  cannot  be  brought  before  a 
justice  of  the  peace.  And  where  an  action  has  been  so  com- 
menced and  appealed  to  the  court  of  common  pleas,  another 
cause  of  action  cannot  be  substituted  by  an  amendment,  even 
though  it  be  within  the  jurisdiction  of  such  court,  unless  con- 
sented to  by  the  defendant,  or  objections  thereto  are  waived. ^ 

Sec.  481.  Petition  by  administrator  for  breach  of  war- 
ranty as  to  incumbrances,  where  owner  has  been  ousted  hy 
foreclosure,  etc. — 

Plaintiff  says  that  on  the day  of ,  18 — ,  letters  of 

administration  on  the  estate  of  E,.  M.,  late  of  said  county, 
theretofore  deceased,  intestate,  were  by  the  probate  court  of 

county,  Ohio,  duly  issued  to  plaintiff,  who  thereupon 

duly  qualified  and  entered  on  the  discharge  of  his  duties  as 
such  administrator,  and  is  now  the  legally  appointed  and  duly 
qualified  administrator  of  said  estate;  that  heretofore  in  the 
life-time  of  said  R.  M.,  and  his  wife,  C.  M.,  to  wit,  on  the 
day  of ,  18 — ,  the  defendant  J.  M.,  for  the  consider- 
ation of  $ received  by  said  defendant  to  his  full  satisfac- 
tion of  said  R,  M.,  by  his  deed  of  general  warranty  of  that 
date,  duly  executed,  sold  and  conveyed  in  fee-simple  to  C.  M. 
during  her  natural  life,  with  remainder  to  said  R.  M.,  his  heirs 
and  assigns,  the  following  described  premises  situate  in  said 
county  of  ,  to  wit:  \^Desori2)tion.'] 

That  said  deed  contained  the  following  covenants  on  the 
part  of  the  defendant,  to  wit :  {Here  give  substance  of  cov- 
enants hrokeii.'] 

\_0r  state:  And  the  said  defendant,  by  his  deed,  covenanted 
to  and  with  plaintiff  that  said  title  so  conveyed  was  free, 
clear  and  unincumbered;  and  that  he,  the  said  defendant, 
would  warrant  and  defend  the  same  against  all  claim  or 
claims  of  all  persons  whomsoever.] 

That  thereupon  the  said  R.  M.  and  C.  M.  entered  into  pos- 
session of  said  premises ;  that  at  the  time  of  the  making  and 
delivery  of  said  deed  the  premises  above  described  were  not 
free  or  clear  from  all  incumbrance,  and  defendant  did  not 
have  a  good  title  thereto,  but,  on  the  contrary,  the  defendant 

before  that  time,  on  the day  of ,  18 — ,  by  deed  in 

the  nature  of  a  mortgage  duly  executed,  had  mortgaged  the 
said  premises  to  one  R.  H,  and  L.  H.,  to  secure  the  payment 

» Nyce  V.  Obertz,  17  O.  71  (1848j.  2  Van  Dyke  v.  Rule,  38  W.  L.  B. 

193 ;  49  O.  S.  530.    See  ante,  sec.  127. 


§  481.]  DEEDS.  449 

of  $ ,  each  bearing  said  date  of ,  18—,  which  mort- 
gage deed  was  duly  recorded  in  vokime at  page of 

county  records. 

That  at  the  time  of  the  execution  and  dehvery  of  said  war- 
ranty deed  to  said  M.,  as  aforesaid,  two  of  said  promissory 

notes  for  $ each,  which  were  secured  by  said  mortgage, 

were  outstanding  and  unpaid,  with  interest  thereon,  and  that 
B.  and  C.  were  the  lawful  owners  and  holders  of  the  same. 

That  in  a  certain  foreclosure  proceeding,  commenced  on  the 

day  of ,  18 — ,  in  the  court  of  common  pleas  of 

county,  Ohio,  in  which  defendant  and  said  M.  were  defendants, 
the  said  B.  and  C.  set  up  their  aforesaid  claim  and  lien  on  the 
said  premises  by  reason  of  said  notes  and  mortgages,  and 
prayed  the  court  that  their  mortgage  be  decreed  the  first  lien 
on  the  premises  and  be  foreclosed,  and  that  the  said  ])remises 
be  sold  to  satisfy  their  said  claim;  that  the  said  court,  after 
full  hearing  and  having  complete  jurisdiction  of  the  said  par- 
ties, duly  decreed  that  the  claim  of  B.  and  C.  by  virtue  of  said 
notes  was  the  first  lien  on  said  premises,  and  that  the  same 

amounted  to dollars,  and  ordered  that  said  premises  be 

duly  advertised  and  sold  to  satisfy  the  same.  That  there- 
upon, in  pursuance  of  said  order,  said  premises  were  duly  ad- 
vertised, and  on  the day  of  ,  18 — ,  said   premises 

were  sold  by  the  sheriff  of  said  county  of to  W.  H.  for 

dollars,  and  the  proceeds  of  said  sale  were  applied  to 

satisfy  the  said  claim  of  B.  and  C. 

Plaintiff  further  says  that  at  the  time  said  foreclosure  pro- 
ceedings were  instituted,  and  for  a  long  time  thereafter  and 
]:)rior  thereto,  by  reason  of  said  lien  of  B,  and  C.  by  virtue  of 
said  mortgage,  the  said  R.  and  C.  M.  were  unable  to  raise 
money  by  means  of  mortgage  or  otherwise ^on  said  lands,  and 
by  reason  thereof  said  lands  were  sold  at  great  sacrifice. 

And  for  a  further  breach  the  plaintiff  alleges  that  at  the 
time  of  the  execution  and  delivery  of  said  deed  the  said  prem- 
ises were  subject  to  a  tax  theretofore  duly  assessed,  charged 
as  a  lien  upon   the  said   premises   by  the  said   township  of 

and  county  of ,  and  by  the  officers  thereof,  of  the  sum 

of  $ ,  and  which  tax  was  then  remaining  due  and  unpaid. 

and  was  at  the  time  of  the  delivery  of  said  deed  a  lien  and 
incumbrance  by  law  upon  the  said  premises;  that  without 

the  knowledge  or  consent  of  said  K.  and  C.  M. acres  of 

said  land  were  duly  sold  by  the  officers  of  said  county  to  satisfy 
said  unpaid  taxes;  that  said acres  were  well  worth  $ . 

That  said  C.  M.  died  on  the day  of ,  18—;  that 

said  K.  ]\I.  survived  his  said  wife,  C.  M.,  and  died  on  the 

day  of ,  18 — ,  intestate. 

That  by  reason  of  the  aforesaid  premises,  on  the day 

of ,  18 — ,  the  said  R.  M.  was  altogether  evicted,  ousted 

and  dispossessed  of  said  premises,  and  put  to  great  expense 
29 


450  DEEDS.  [§  482. 

and  trouble,  to  the  damage  of  plaintiff  in  the  sum  of  $ , 

and  interest  thereon  from  the day  of ,  18 — . 

Wherefore  plaintiff  prays  judgment  against  defendant  for 
$ and  interest  thereon  from ,  18 — ,  and  for  costs. 


Note. —  From  Marlow  v.  Thomas,  Adm'r,  Supreme  Court,  unreported. 
No.  1918.  See,  also,  form  in  Smith  v.  Dixon,  27  O.  S.  471.  The  rule  of  dam- 
ages where  there  has  been  an  entire  eviction  is  the  amount  of  consideration 
money,  with  interest  for  such  a  time  as  will  cover  a  claim  for  mesne  profits. 
Wade  V.  Comstock,  11  O.  S.  83;  Lloyd  v.  Quimby,  5  O.  S.  262  (1855);  Clark 
V.  Parr,  14  O.  118 ;  Stow  v.  Gilbert,  2  Clev.  Rep.  321.  The  court  is  not  bound 
by  the  amount  recited  in  the  deed,  but  may  find  the  real  consideration  by 
parol.  Vails  v.  Railroad  Co.,  1  C.  S.  C.  R.  571.  In  some  cases,  however,  the 
measure  will  be  the  amount  of  the  debt  and  the  interest  discharged  by  the 
foreclosure.  Lloyd  v.  Quimby,  supra.  Substantial  damages  may  be  recov- 
ered. Comstock  V.  Son,  154  Mass.  389 ;  Mather  v.  Corliss,  103  Mass.  568. 
This  action  is  held  to  lie  even  if  incumbrance  is  not  paid.  Nesbitt  v.  Camp- 
bell, 5  Neb.  432. 

Sec.  482.  Short  form  of  petition  for  breach  of  covenant 
against  incumbrances. — 

That  on  the day  of  ,  18 — ,  said  defendant  A.  B., 

in  consideration  of  the  sum  of  $ ,  duly  executed,  acknowl- 
edged and  delivered  to  plaintiff  a  warranty  deed,  and  thereby 
sold  and  conveyed  to  him  the  following  described  premises: 
\_D escribe  them]. 

Said  defendant  covenanted  in  said  deed  that  said  premises 
were  free  and  clear  from  all  incumbrances,  etc.  [copy  cove- 
nant], (a). 

At  the  time  the  said  A.  B.  executed  and  delivered  said  deed 
he  did  not  have  a  good  and  sufficient  title  to  said  premises 
described  in  his  said  deed  and  in  this  petition,  nor  were  the 
same  free  from  all  incumbrances  at  said  time  of  the  execution 
and  delivery  of  said  deed,  but  ^state  what  incwnhrances,  a7id 
the  amount  required  to  he  paid  to  remove  the  same] ;  the  plaint- 
iff was  compelled   to   remove   said  incumbrances,  and  paid 

A.  B.  the  sum  of  $ to  discharge  the  same,  of  all  which 

the  defendant  was  duly  notified. 

That  no  part  thereof  has  been  paid.     Plaintiff  has  therefore 

sustained  damages  (J)  in  the  sum  of  $ ,  with  interest  from 

the day  of ,  18 — . 

Note. —  (a)  A  copy  of  the  covenants  may  be  substantially  set  out. 
See  aide,  sec.  476. 

(b)  The  measure  of  damages  where  the  plaintiff  has  not  entirely  lost  the 
premises,  but  has  only  been  compelled  to  pay  off  incumbrances,  is  the 
amount  paid  in  good  faith  to  remove  such  incumbrances.  J'oote  v.  Burnet, 
10  O.  317-33;  Delavergne  v.  Norris,  7  Johns.  458;  Hall  v.  Dean,  13  Johns. 
105;  Leffinvvell  v.  Elliot,  10  Pick.  204;  Brooks  v.  Moody,  20  Pick.  474. 
Nominal  damages,  however,  can  only  be  recovered  until  the  incumbrance 
is  extinguished.  Gest  v.  Kenner,  2  Handy.  87.  "Where  there  has  been  a 
partial  eviction,  recovery  is  limited  to  a  proportionate  amount  of  the  dam- 
ages sustained.  King  v.  Kerr,  5  O,  154;  Foote  v.  Burnet,  supra;  Clark  v. 
Parr,  14  O.  118;  McAlpin  v.  Woodruff,  11  O.  S.  129;  Johnson  v.  Nyce,  17  O. 
86.  There  can  be  no  breach  on  account  of  a  public  lii<;liway  wlien  the 
premises  were  conveyed  subject  thereto.  Cincinnati  v.  Brachmaii,  35  O.  S. 
289. 


g§  483,  484. 1  DEEDS.  451 

Sec.  483.  Petition  for  breach  of  covenant  against  incum- 
brances on  account  of  unpaid  taxes,  and  to  recover  the 
amount  paid. — 

Plaintiff  says  that  on  the day  of ,  18 — ,  defendant 

sold  and  conveyed  to  this  plaintiff  the  following  described 
])remises:   ^Description  of  property  P\ 

That  said  deed  contained  the  following  covenants  on  the 
part  of  the  defendant,  to  wit:  \^Give  copy  or  suhstance  of  cove- 
nants h7'oJcen.'\ 

Said  premises  were  not  free  and  clear  of  all  incumbrances 
thereon,  but  on  the  contrary  were  subject  to  the   taxes  for 

the  year  18 — ,  amounting  to  the  sum  of  dollars,  which 

were  at  the  time  of  said  deed  a  valid  and  subsisting  lien 
thereon. 

Plaintiff  was  compelled  to  and  did,  on  the day  of , 

18 — ,  pay  to  the  treasurer  of county,  Ohio,  the  said  sura 

of dollars,  taxes  as  aforesaid  which  were  a  lien  upon  the 

premises.     There  is  therefore  due  plaintiff  from  defendant 

the  said  sum  of dollars  with  interest  from  the day 

of ,  18 — ,  for  so  much   money  laid  out  and  expended  by 

plaintiff  in  the  payment  of  said  taxes  so  charged  upon  said 
])remises  for  the  year  18 — ,  for  which  he  asks  judgment. 

Note. —  See  ante,  sec.  480 ;  Long  v.  MoUer,  5  O.  S.  272.  The  taxes  should 
be  first  paid  off.     Mills  v.  Saunders,  4  Neb.  190. 

Sec.  484.  Pleading  in  actions  upon  covenants  of  war- 
ranty.—  The  obligations  of  covenants  of  warranty  cannot  de- 
pend upon  the  knowledge  or  want  of  knowledge  of  parties. 
If  such  were  the  law  they  would  amount  to  naught.  Their 
purpose  is  to  serve  as  a  safeguard  against  possible  ignorance 
of  title  on  the  part  of  a  vendor.^  It  has  been  held  not  essential, 
however,  that  there  be  an  actual  dispossession  of  the  grantee. 
If  a  paramount  title  be  asserted  in  such  a  way  that  he  must 
yield  to  it  or  purchase  the  same,  such  purchase  will  amount 
to  an  eviction;  nor  is  it  necessary  that  such  paramount  title 
be  established  by  decree.-     Hence  it  is  essential,  to  maintain 

1  Lloyd  V    Quimby,  o  O.  S.  265-6.  son  v.  Nyce,  17  O.  66;  Innis  v.  Ag- 

Tiie  courts  of  Ohio  have  said  that  the  new,  10  O.  386 ;  Nice  v  Obertz.  17  O. 

rule  is  universal  that  there  can  be  no  71;  Gest  v.   Kenner,   2  Handy,   94; 

right  of  action  upon  a  covenant  of  Hill  v.   Butler,  6  O.  S.  207.     But  the 

warranty  unless  there  has  been  an  contrary  doctrine  is  maintained  by 

eviction.     Tuite  v.  Miller,  10  O.  382  other  courts.    5  Lawson,  R  &  R,  sec. 

(1841);  King  v.   Kerr,  .">  O.  lo4;  Day  2297,  and  cases  cited. 
V.  Brown,  2  O.  345;  Great  Western         -Lane  v.  Furey,  31  O.  S.  574;  Betz 

St.^ck  Go.  V.  Saas,  24  O.  S.  542 ;  John-  v.  Bryan,  39  O.  S.  323. 


-t52  DEEDS.  [§  484. 

an  action  upon  the  covenant  of  general  warranty,  to  aver  an 
eviction  under  a  superior  or  better  title.^  A  person  injured 
by  a  breach  of  covenant  of  warranty  may  maintain  an  action 
against  each  intermediate  warrantor,  but  is  entitled  to  only 
one  satisfaction.^  In  an  action  by  the  covenantee  for  a  breach 
of  covenant  of  warranty,  where  he  has  been  evicted  by  para- 
mount title,  the  facts  showing  eviction  need  not  be  set  out, 
nor  is  it  necessary  to  particularly  describe  the  adverse  title, 
as  at  common  law  it  is  sufficient  to  allege  in  general  terms  an 
eviction  under  a  paramount  title ; '  as  "  that  the  said  A.  B.  had 
not  a  good  and  sufficient  title  to  said  tract  of  land,  and  b}'^ 
reason  thereof  the  plaintiffs  were  ousted  and  dispossessed  of 
the  said  premises  by  due  course  of  law."  *  In  actions  for 
breach  of  covenant  of  warranty  and  for  quiet  enjoyment,  it  is 
not  sufficient  to  merely  negative  the  words  of  the  covenant, 
as  these  covenants  protect  only  against  an  ouster  from  a  pos- 
session or  enjoyment  of  the  premises;  and  to  aver  a  breach, 
therefore,  an  eviction  must  be  substantially  averred  by  title 
paramount.^  !Nor  is  it  essential  to  allege  that  the  vendor  had 
notice  of  the  suit  by  which  the  vendee  was  evicted.^  The 
rule  has  been  adopted  in  Ohio  that  there  can  be  no  action 
upon  a  covenant  of  general  warranty  where  there  has  been  a 
failure  of  title  after  the  transfer,  provided  the  grantor  had 
at  the  date  of  his  deed  a  perfect  legal  and  equitable  title."  A 
petition  alleging  "  that  when  said  conveyance  was  made  the 
defendant  was  not  seized  of  an  indivisible  title  in  fee-simple 
to  said  land,  nor  was  he  seized  of  any  title  whatever  thereto ; 
nor  had  he  any  right  to  convey  the  same ;  nor  has  he  since 
said  conveyance  become  seized  of  any  indivisible  title  in  fee- 

ilnnis  V.  Agnew,  1  O.  389;  Eobin-  Chism,  10  Wheat.  449;  Mills  v.  Rice, 

son  V.  Neil,  3  O.  525  (1828).  3  Neb.  76  (1873). 

2  King  V.  KeiT,  5  O.  154  (1831).  *  Day  v.  Chism,  10  Wheat.  449. 

^Townsend  v.  Morris,  6  Cow.  123;  ^Rawle  on  Covenants,  181  ;  Paul  v. 

Rickert  v.  Snyder,  9  Wend.  416 :  Kel-  Whitman,  3  W.  &  S.  410 ;  Blanchard 

logg  V.  Piatt,  33  N.  J.  L.  328 ;  Cheney  v.  Hoxie,  34  Me.  378 ;  Wait  v.  Max- 

V.  Straube,  53  N.  W.  Rej..  479  (Neb,,  well,  4  Pick.  87;  Mills  v.  Rice,  3Nev. 

1893);    Maxwell's   Code    P'dg.    648;  85. 

Boone's  Pldg.,   sec.   24j.     >t  is  only  6 King  v.  Kerr.   5  0.  158;  5  Halst. 

necessary  to  substantially  allege  evic-  20. 

tion   by    paramount    title.     Day    v.  'Wade  v.  Comstock,  11  O.  S.  71. 

and  cases  cited  on  p.  79. 


§§  485,  4S0.J  DEEDS.  -453 

simple  to  said  land,  nor  of  any  title  thereto,"  has  been  held 
good  as  against  a  demurrer.^  In  pleading  a  breach  of  a  cove- 
nant of  warranty  the  negation  of  the  covenant  should  relate 
to  the  title  at  the  time  of  the  conveyance.  The  covenants 
which  are  claimed  to  have  been  broken  should  be  set  out  in 
the  pleadings.- 

Sec.  485.  Petition  by  assignee  of  grantee  against  grantor 
on  covenant  of  Avarranty. — 

On  the day  of ,  18 — ,  for  the  consideration  of  the 

sura  of  $ received  by  said  defendant  to  his  full  satisfac- 
tion, by  his  deed  of  general  warranty  of  that  date  dulv  ex- 
ecuted, he  sold  and  conveyed  to  said  Ei^the  following  desciribed 

premises,  situate  in  the  "^county  of and  state  of ,  to 

wit :  [Describe  them.']  That  said  deed  contained  the  following 
covenants  on  the  part  of  the  defendant,  to  wit:  [Copy  cove- 
nants ?[ 

That  said  E.  went  into  possession  of  said  premises  under 

said  deed,  and   on  or  about  the day  of ,  18 — ,  for  a 

valuable  consideration,  conveyed  the  same  by  deed  of  general 
warranty,  duly  executed,  to  one  G.,  who  went  into  possession 

thereof,  and  on  the  day  of  ,  18—,  conveyed  said 

premises  by  deed,  duly  executed,  to  plaintiff,  who  now  holds 
said  premises  under  said  conveyance. 

On  the  day  of  ,  1*8 — ,  plaintiff  was  evicted  and 

dispossessed  of  said  premises  by  virtue  of  certain  proceedings 

duly  instituted  in  the court  by  one  A.  B.  \fjive  style  and 

nature  of  case],  wherein  it  was  adjudged  that  the  said  defend- 
ant did  not  have  a  good  and  sufficient  title  to  said  premises 
at  the  time  of  the  conveyance  of  said  premises  by  him  to  said 
E.  Plaintiff  has  therefore  sustained  damages  by  reason 
thereof  in  the  sum  of  $ . 

Sec.  480.  Petition  by  devisee  of  grantee  against  grantor 
on  covenant  of  warranty. — 

On  the day  of ,  18 — ,  said  defendant,  in  considera- 
tion of  the  sum  of  $ ,  delivered  to  E.  F.  a  deed  of  that 

date,  duly  executed,  and  thereby  sold  and  conveyed  to  said 
E.  E.  tlui  following  described  real  estate:  [description],  which 
deed  contained  a  covenant  as  follows:  \ijopy  or  siihstance  of 
covenants. \ 

That  the  said  E.  F.  entered  into  possession  of  said  premises 

under  said  deed,  and  on  or  about  the day  of ,  18 — , 

made  his  last  will  and  testament  in  writing,  properly  signed 
and  attested,  and  thereby  devised  said  premises  to  the  plaint- 
iff [and   U.  Z.],  and  afterwards,  without  changing  said  will 

1  Reagan  v.  Fox,  4",  Ind.  8  (1873).  2  McCampbell  v.  Vastine,  10  la.  538. 


454  DEEDS.  [§§  487,  488. 

as  to  said  devisee,  on  or  about  the day  of  ,  18 — , 

died,  he  at  the  time  having  his  domicile  in county,  Ohio. 

That  said  will  was  thereafter  duly  admitted  to  probate  in 
the  probate  court  of connty,  Ohio. 

That  the  plaintiff  thereupon  entered  into  possession  of  said 
premises  under  said  will,  but  was  ousted  and  dispossessed 
thereof  by  due  course  of  law  by  one  L.  X.,  said  defendant  not 
having  a  good  and  sufficient  title  to  said  premises  at  the  time 
he  executed  and  delivered  said  deed  to  E.  F, 

That  the  plaintiff  has  sustained  damages  by  reason  of  the 
premises  in  the  sum  of  S • 

Sec.  487.  Actions  upon  other  covenants. —  The  cause  of 
action  on  a  covenant  for  quiet  enjoyment  accrues  to  the  cov- 
enantee upon  eviction  by  legal  process  under  a  prior  mort- 
gage.^ A  covenant  for  peaceable  enjoyment  in  a  ninety-nine 
year  lease  is  broken  by  the  assignment  of  dower  in  the  prem- 
ises, so  that  an  action  may  be  maintained  by  the  lessee  against 
the  assignee  of  the  reversion.-  Where  one  has  entered  into 
mutual  covenants  with  another,  such  as  a  covenant  to  convey 
and  to  pay,  the  purchaser  cannot  maintain  an  action  thereon 
without  averring  payment  or  tender  of  the  purchase-money.-^ 
If  payment  is  to  be  made  at  stated  periods  and  the  purchaser 
is  placed  in  possession,  a  cause  of  action  arises  for  the  sums 
agreed  to  be  paid  as  they  become  due,  without  a  tender  by 
the  vendor  of  a  conveyance.^  An  action  may  be  maintained 
on  an  instrument  which,  has  been  executed  and  recorded  ac- 
cording to  statute,  if  it  has  been  acted  upon  by  the  parties  in 
accordance  with  the  terms  thereof.'^  In  alleging  a  breach  of 
covenant  where  the  liability  depends  on  the  performance  of 
a  condition,  its  performance  or  a  tender  must  be  averred; 
if  there  are  mutual  conditions,  the  plaintiff  must  aver  readi- 
ness or  an  offer  to  perform.^ 

Sec.  488.  Petition  for  breach  of  covenant  for  quiet  en- 
joyment.— 

On  the day  of ,  IS — ,  the  defendant  A.  D.  and  his 

wife,  C.  D.,  in  consideration  of  the  sum  of  $ then  paid, 

1  Smith  V.  Dixon,  27  O.  S.  471 ;  3  McCoy  v.  Bixbee,  6  O.  310  (1834) ; 
White  V.  Wliitney,  3  Met.  81 ;  Tufts  Campbell  v.  Gittings.  19  O.  347  (1850). 
V.  Adams,  8  Pick.  547 ;  Furnas  v.  *  Wiggins  v.  Bridge  Co.,  1  Disn. 
Durgan,  119  Mass.   500;  Cheney  v.  573(1857). 

Straube,   53  N.   W.  Rep.   477  (Neb.,        5  Bridgeman  v.  Wells.  13  O.  43. 
1892).  "  Courcier  v.  Graham,  1  O.  331-343 ; 

2  McAlpin  V.  Woodruff,  1  Disn.  339.     5  John?.  179. 


§  489.]  DEEDS.  455 

delivered  to  the  plaintiff  a  deed  for  the  following  described 

premises,  situate  in  the  county  of and  state  of ,  to 

wit:  [Describe  land.]  Said  deed  contained  a  covenant  for 
quiet  enjoyment  as  follows:  [^Copy  covenant.'] 

That  plaintiff,  upon  receiving  said  conveyance,  immediately 
went  into  possession  of  the  said  premises  under  and  by  virtue 
of  said   deed,  and  had  only  remained  in   possession  thereof 

until  the day  of ,  18 — ,  when  he  was  lawfully  evicted 

therefrom  by  A.  B.,  and  is  now  excluded  from  the  possession 
and  enjoyment  of  said  premises. 

That  plaintiff  has  therefore,  by  reason  of  said  lawful  evic- 
tion, whoU}'  lost  said  premises  and  the  improvements  and 
money  expended  by  him  thereon  while  in  possession  under 
said  conveyance  from  the  defendant,  and  has  therefore  sus- 
tained damages  in  the  sum  of  $ ,  for  which  he  asks  judg- 
ment. 

Note.— See  ante,  sec,  487.  The  words  "grants,  demises  and  leases," 
in  the  absence  of  other  covenants  in  a  lease,  imply  a  general  warranty  of 
quiet  possession.  But  where  there  is  a  covenant  for  quiet  enjoyment  no 
such  general  warranty  exists.     Tooker  v.  Grotenkempler,  1  C.  S.  C.  R  88 

(1870). 

Sec.  489,  Petition  by  assignee  for  breach  of  covenant  in 
lease  to  insure. — 

On   the   day  of  ,  18—,  S.  A.  P.  executed   and 

delivered  a  lease  to  one  F.,  thereby  leasing  and  demising 
to  said  F.  certain  premises  situated  in  the  city  of  C,  county 

of ,  and  state  of  Ohio, and  described  as  follows:  [Descrip- 

tion.'] 

The  terms  of  said  lease  were  such  that  said  premises  were 

leased  to  said  F.  for  a  term  of years,  beginning  on  the 

day  of ,  18 — ,  and  ending  on  the day  of , 

18 — . 

It  was  covenanted  and  agreed  in  said  lease  by  and  between 
the  said  S.  A.  P.  and  F.,  parties  thereto,  that  the  said  F.  should 
keep  said  leased  premises  fully  insured  for  the  benefit  of  the 
said  S.  A.  P.,  and  that  if  at  any  time  the  said  F.  should  fail 
to  keep  the  same  so  insured,  that  the  said  P.  might  cause  an 
insurance  to  be  made  and  ])hiced  upon  said  premises  at  the 
expense  of  said  F.,  and  in  the  name  and  for  the  benefit  of  the 
said  P.  It  was  also  further  stipulated  and  agreed  in  said 
lease  that  in  case  said  building  upon  said  premises  should  burn 
down  during  the  continuance  of  said  lease,  that  the  said  F. 
should  have  the  benefit  of  said  insurance  money  for  the  pur- 
])ose  of  rebuilding  said  building  in  case  he  should  elect  to 
rebuild  the  same. 

On  the day  of ,  18—,  said  lease  was  deposited  with 

the  recorder  of  county,  Ohio,  and  was  by  him  duly  re- 


456  DEEDS.  [§  490. 

corded  in  the  record  of  leases  in  said  county,  volume , 

page 


On  the  day  of ,  18 — ,  the  said  S.  A  P.,  for  a  valu- 
able consideration  to  him  paid  by  this  plaintiflF,  duly  assigned 
and  sold  to  plaintiff  all  his  interest  in  said  lease.     The  said 

defendant  on  the day  of  • ,  18 — ,  went  into  possession 

of  the  said  premises  under  and  by  virtue  of  said  lease,  and  on 

that  date  a  policy  of  insurance  for  the  sum  of dollars 

was  placed  upon  said  premises  by  the  said  F.,  which  said  in- 
surance policy  expired  on  the day  of ,  18 — .     That 

at  the  time  of  the  expiration  of  the  said  policy  this  plaintiff 
requested  said  defendant  to  reinsure  said  premises,  which  he 
neglected  and  refused  to  do. 

That  by  reason  of  the  failure  of  said  defendant  to  fully  keep 
and  perform  his  covenant  in  this  behalf,  plaintiff  was  com- 
pelled to  and  did,  on  the day  of ,  18 — ,  expend  the 

sum  of  $ for  the  purpose  of  reinsuring  said  premises. 

\_Praye7\'\ 

Note. —  See  Masury  v.  Southwork,  9  O.  S.  340.  Such  a  covenant  runs 
with  the  land.     Id. 

Sec.  490.  Petition  for  breach  of  covenant  of  grantee  to 
build. — 

That  on  the day  of ,  18 — -,  plaintiff  was  the  owner 

and  in  possession  of  the.  following  described   lands:  [describe 

land],  and  on  the day  of ,  18 — ■,  plaintiff  laid  out  said 

premises  into  streets,  lots  and  blocks  [as  an  addition  to  the 

city  of ],  and  offered  said  lots  for  sale  for  the  purpose  of 

erecting  dwelling-houses  thereon. 

That  the  erection  of  dwelling-houses  on  the  lots  so  sold 
greatl}^  enhanced  the  value  of  the  remaining  lots  in  said  addi- 
tion belonging  to  the  plaintiff.     On  the  day  of  , 

18 — ,  in  consideration  of  the  sum  of  $ ,  plaintiff  sold  and 

conveyed  to  said  defendant  lot  1,  in  block  2,  in  said  addi- 
tion, and  the  said  defendant,  as  a  further  inducement  and  con- 
sideration for  said  sale,  undertook  by  his  covenant  in  the  deed 
of  conveyance  executed  b}'  the  plaintiff  to  the  defendant,  to 
erect  thereon  a  dwelling-house  of  the  following  dimensions: 

[state  in  ftdl\  to  cost  not  less  than  % ,  and  have  the  same 

finished  and  complete  on  or  before  the day  of ,  18 — 

[or  copy  covenant]. 

In  consideration  of  said  covenant  and  agreement  on  the 
part  of  said  defendant,  the  plaintiff  did  on  said  day  sell  and 
convey  to  said  defendant  the  aforesaid  lot  for  the  sum  of 

I ,  the  actual  value  thereof  at  that  time  being  the  sum  of 

$ ,  but  the  defendant  has  wholly  failed  to  erect  said  dwell- 
ing; and,  on  the  contrary,  has  permitted  said  lot  to  remain 
vacant  and  unoccupied. 


I 


§  491.]  DEEDS.  457 

Defendant  is  therefore  indebted  to  the  plaintiff  for  the  dif- 
ference between  the  prifce  paid  and  the  actual  value  of  said 
lot,  to  wit,  the  sum  of  $ ,  and  also  for  the  damages  sus- 
tained by  a  breach  of  said  covenant  in  depreciating  the  value 

of  the  plaintiff's  remaining  lots  in  said  addition,  to  wit,  $ .. 

That  plaintiff  has  sustained  damages  in  the  sum  of  $ . 

Note. —  From  Thornton's  Forms. 

Sec.  491.  Defenses  to  actions  upon  covenants  generally. 

An  answer  of  a  grantor  to  an  action  by  a  covenantee  upon  a 
covenant  against  incumbrances,  claiming  that  the  tleed  was 
made  upon  a  consideration  contained  in  an  article*  of  agree- 
ment that  the  covenantee  would  assume,  as  part  of  the  consid- 
eration, the  payment  of  such  incumbrances,  is  a  bar  to  the 
action.^  Although  a  covenantee  may  bring  several  actions 
against  each  successive  covenantor,  and  recover  several  judg- 
ments against  each,^  a  satisfaction  against  one  is  a  bar  to  an 
action  against  a  second  covenantor.'  A  purchaser  cannot  set 
up  as  a  defense  to  an  action  for  purchase-money  a  breach  of 
covenant  in  the  deed,  by  reason  whereof  he  had  been  deprived 
of  his  right  to  maintain  and  use  the  projection  of  a  roof  and 
eaves,  unless  he  can  show  that  the  ri^ht  thereto  belono-ed  to 
the  grantor,  and  the  burden  of  proof  is  upon  him.'*  A  grantor 
in  an  action  against  him  for  the  recovery  of  purchase-money 
may  recoup  for  any  damages  he  ma}^  have  sustained  by  reason 
of  failure  of  title  and  consequent  loss  of  the  premises  conveyed.^ 
An  assignment  of  the  expenses  of  constructing  a  ditch  made 
by  the  commissioners  of  a  county  in  pursuance  of  law  is  not 
an  incumbrance  upon  which  recovery  may  be  had  for  a 
breach  of  covenant  against  incumbrances  by  a  covenantee 
against  a  covenantor  who  became  the  purchaser  thereof  after 
the  ditch  was  established.*^  Greater  strictness  is  required  in 
pleading  covenants  in  deeds  than  in  other  actions.  If  a 
defendant  relies  upon  some  matter  of  excuse  for  the  non-per- 
formance of  his  covenant,  or  if  he  desires  to  excuse  himself 
because  of  the  non-performance  of  a  covenant  by  the  plaintiff, 
he  must  specially  plead  the  same.'     An  answer  admitting  the 

'  Reid  V.  Sycks,  37  O.  S.  285.  ^  Meek   v.    Breckenridge,  29  O.  S. 

2  King  V.  Kern,  5  O.  155;  Foote  v.     642  (1876). 

Burnett,  10  O.  317 ;  Wilson  v.  Taylor,        ■'^Gest  v.  Kenner,  2  Handy,  87. 

^  O.  597.  6  Newcomb  v.  Feidler,  24  O.  S.  463. 

3  "Wilson  V.  Taylor,  sujjra.  ^Courcier  v.  Graham,  16    O.  345, 

346. 


458 


DEEDS. 


[§  492. 


covenant,  setting  up  an  oral  contract  by  which  it  was  agreed 
that  the  plaintiff  was  to  pay  the  incumbrances  with  a  part  of 
the  purchase-money  retained  b}''  him,  alleging  no  fraud  or 
mistake,  does  not  constitute  a  defense  to  an  action  to  recover 
damages  for  a  breach  because  it  does  not  come  within  the  ex- 
ception in  respect  to  parol  proof  of  consideration.^  The  stat- 
ute of  limitation  cannot  be  made  available  as  a  defense  under 
a  general  demurrer  where  the  petition  in  an  action  for  breach 
of  covenant  of  warranty  does  not  show  when  the  cause  of 
action  arose.^ 

Sec.  492.  Answer  setting  up  want  of  title  as  against  note 
for  purchase-money. — 

[  Caption^ 

That  the  note  sued  on  herein  was  given  in  consideration  of 
a  conveyance  by  the  plaintiff  to  defendant  by  a  deed  of  gen- 
eral warranty  [or,  in  which  he  covenanted  that  he  was  seized 
and  possessed  of  the  real  estate  therein  described  by  a  title  in 
fee-simple],  a  copy  of  which  covenant  is  as  follows:  \_Copy  of 
covenant  or  suhstance.'\ 

That  plaintiff  had  not  at  the  date  of  the  execution  of  said 
deed  nor  has  he  since  obtained  any  title  to  said  real  estate  or 
any  part  of  it. 

That  defendant,  by  reason  of  the  plaintiff's  want  of  title, 
did  not  obtain  possession  of  said  real  estate,  and  is  not  now  in 
possession  [or,  defendant  took  possession  of  said  real  estate, 

but  was,  on  the day  of ,  18 — ,  evicted  therefrom  by 

R  F.,  who  was  the  owner  in  fee-simple  and  entitled  to  the 
possession  thereof,  and  is  now  in  possession].  That  there  was 
no  other  consideration  for  said  note. 

I  Hott  V.  McDonough,  3  O.  C.  C.  177.    2  Mills  v.  Rice,  3  Neb.  76. 


I 


CHAPTER  32. 


DIVORCE  AND  ALIMONY. 


Sec.  493. 

Introductory. 

Sec.  512. 

494. 

Residence  of  plaintiff. 

495. 

Petition,  where  filed. 

513. 

496. 

Preparation  of  petition. 

497. 

Causes  for  divorce  enumer- 
ated. 

514. 

498. 

Causes  —  Husband  or  wife 

515. 

living  at  time  of  marriage. 

516. 

499. 

Petition  on  ground  of  prior 

marriage. 

517. 

500. 

Causes  —  Absence  for  three 
years. 

518. 

501. 

Petition  for  wilful  absence. 

519. 

502. 

Causes  —  Adultery. 

503. 

Petition  on  ground  of  adul- 

530. 

tery. 

531. 

504. 

Causes  —  Impotency. 

531a 

505. 

Petition  on  ground  of  im- 

533. 

potency. 

533. 

506. 

Causes  —  Extreme  cruelty. 

534. 

507. 

Petition  on  ground  of  ex- 
treme cruelty. 

507a.  Petition  on  ground  of  ex- 

535. 

treme  cruelty  and  drunk- 

enness, and  for   alimony 

536. 

where  husband  owns  real 

estate. 

527. 

508. 

Causes  —  Fraudulent    con- 
tract. 

538. 

509. 

Petition      on      ground    of 
fraudulent  contract. 

529. 

510. 

Causes  —  Any  gross  neglect 
of  duty. 

511. 

Petition  on  ground  of  gross 
neglect  of  duty  by  failing 
to  provide. 

Causes  —  Habitual  drunk- 
enness. 

Causes  —  Imprisonment  in 
penitentiary. 

Petition  on  ground  of  im- 
prisonment. 

Service. 

Affidavit  for  service  by 
publication. 

Effect  of  foreign  divorces. 

Petition  to  nullify  marriage 
with  imbecile. 

Petition  to  annul  marriage 
with  minor. 

The  answer. 

Forms  of  answers. 
.  Answer  and  cross-petition. 

The  trial. 

Custody  of  minor  children. 

Petition  by  divorced  wife 
against  father  for  sup- 
port of  child. 

Allowance  of  alimony  in 
divorce  proceedings. 

Proceedings  for  alimony 
alone. 

Petition  for  alimony  alone. 

Allowance  of  temporary 
alimony. 

Petition  by  divorced  wife 
against  divorced  hus- 
band's widow  and  heirs 
to  enforce  payment  of  de- 
cree for  alimonj'  against 
his  real  estate,  and  note. 


Sec.  403.  Introductory.— The  law  in  Ohio  on  the  subject 
of  divorce  is  largely  confined  to  statutes.  There  are  but  few 
decisions  under  the  various  provisions  because  of  the  fact  that 
cases  cannot  be  taken  bevond  the  ti'ial  court  unless  involvino" 


460  DIVORCE    AND    ALIMONY.  [§  494. 

a  question  of  alimony  or  the  custocty  of  minor  children.  The 
law  is  therefore  confined  to  such  cases  as  were  adjudicated 
before  the  law  was  enacted  which  confined  the  controversies 
to  trial  courts,  and  to  such  other  cases  as  may  appear  in 
unofficial  reports  decided  by  trial  courts.  A  systematic  col- 
lection and  treatment  of  those  cases,  supplemented  by  such 
others  as  may  seem  proper,  may  not  be  out  of  place.  Many 
have  no  doubt  been  importuned  to  prosecute  a  suit  upon  the 
theory  that  all  that  is  necessary  is  to  have  a  cause,  and  that 
both  parties  are  willing,  the  applicants  not  knowing  that  when 
a  case  discloses  such  a  state  of  facts  the  court  will  refuse  re- 
lief;^ or  if  the  case  appears  to  be  a  suspicious  one,  or  there 
has  been  collusion,  or  something  is  kept  back,  a  divorce  will 
not  be  granted;-  and  that  it  will  not  ratify  an  agreament 
made  by  parties  for  a  divorce,  and  will  probably  censure  an 
attorney  who  undertakes  to  palm  such  an  agreement  upon  the 
court  as  adversary.^ 

Sec.  41)4.  Residence  of  plaiiitift*. —  The  statute  provides  * 
that  the  plaintifp,  except  in  actions  for  alimony  alone,  must  be 
a  resident  of  the  state  for  at  least  one  year  before  filing  the 
petition.  If  the  wife  makes  the  application  for  divorce,  the 
fact  that  the  residence  of  the  husband  is  different  from  that 
of  the  wife  does  not  preclude  the  latter  from  tiling  her  peti- 
tion in  the  county  where  she  may  reside;*  as  the  rule  that 
the  domicile  of  a  wife  must  be  governed  by  that  of  her  hus- 
band has  no  application  to  a  suit  by  her  for  divorce,  under  a 
statute  requiring  it  to  be  brought  in  the  county  where  the  in- 
jured party  resides.^  The  suit  must,  however,  be  brought 
where  she  actually  resides.'^  Where  the  conduct  of  the  hus- 
band has  been  such  that  the  wife  has  been  compelled  to  leave 
him,  sufficient  to  give  rise  to  a  cause  for  divorce,  she  may  do 
so  and  select  a  separate  domicile,  and  in  such  case  her  domi- 
cile is  not  that  of  her  husband.^ 

1  Smith,  W.  643,  644;  Latham,  30  6  Cox,  19  O.  S.  502;  Hunt,  72  N.  Y. 
Gratt.  43.  317;  Colvin  v.  Reed,  55  Pa.  St  375. 

2  Wolf,  W.  243 ;  Friend,  W.  639.  '>U.;  Smith,   11  Pa.  Co.  Ct.  Rep. 
.3  Smith,  W.  643 ;  Blank  v.  Nohl,  113    465 ;  Hewes,  16  N.  Y.  Supp.  119.    Cf. 

Mo.  159  (1892);  Stoutenburg  v.  Ly-  Loker  v.  Gerald,  31  N.  E.  Rep.  709 
brand,  13  O.  S.  228 ;  Cross,  58  N.  H.  373.    (Mass.,  1892) ;  Wood,  54  Ark.  172 ;  15 

4  O.  Code,  sec.  5690.  S.  W.  Rep.  459. 

6  O.  Code,  sec.  5691.  8  Smith,  43  La.  Ann.  1140 ;  Thomp- 

son, 11  L.  R.  A.  443,  and  note;  S.  C, 


§§  495— i'J  i .]  DIVORCE    AND    ALIMONV.  461 

Sec.  495.  Petition,  where  filed. —  An  action  for  divorce  and 
alimony  must  be  brought  in  the  county  where  the  plaintiff  has 
a  honafide  residence  at  the  time  the  same  is  instituted,  or  in 
the  county  where  it  arose ;  and  the  court  is  required  to  hear 
and  determine  the  same  whether  the  marriage  took  place,  or 
the  cause  of  divorce  occurred,  within  or  without  the  state.^ 

Sec.  4%.  Preparation  of  petition. —  The  petition  must  al- 
lege that  the  plaintiff  is  an  actual  resident  of  the  county 
where  suit  is  brought;  that  plamtiff  had  a  honafide  residence 
in  the  state  at  least  one  year  before  the  application;  the  time 
and  place  of  marriage;  the  names  and  ages  of  the  children,  if 
any;  a  brief  statement  of  the  cause  or  grounds  for  divorce; 
and  if  adultery  be  the  cause,  the  time  and  place  of  the 
offense,  and  the  person  with  whom  committed,  if  known,  and 
if  unknown,  the  reason  for  the  omission  should  be  given.'-  If 
alimony  be  sought,  the  petition  should  set  out,  as  near  as  may 
be,  the  kind  and  amount  of  personal  property,  and  a  de- 
scription of  the  real  estate  of  defendant.^  Unlike  the  rule  in 
other  cases,  it  is  not  necessary  that  the  pleadings  in  divorce 
proceedings  be  verified,*  but  they  may  be  amended  as  other 
pleadings,  in  which  case  new  service  should  be  made;  waiver 
of  counsel  cannot  be  received  in  lieu  of  service  in  an}^  case.* 
If  an  injunction  is  prayed  for,  however,  it  would  be  proper 
to  verify  the  petition  positively,  to  comply  with  the  rule  as 
to  obtaining  an  injunction,  as  the  latter  rule  cannot  be  dis- 
pensed with.  It  is  not  necessary  to  aver  that  the  offense  has 
been  condoned,  as  that  is  matter  of  defense.*  It  should  be 
alleged,  however,  that  the  parties  are  no  longer  living  to- 
gether. 

Sec.  497.  Causes  for  divorce  enumerated. —  The  statute^ 
provides  that  courts  of  common  pleas  may  grant  divorces  for 
the  following  causes:     1.  That  either  party  had  a  husband  or 

8  So.  Rep.  419 ;  Watkins,   125   Ind.  <  r.  g.^  gee.  5697. 

163.  5  Stewart's  M.  &  D.,  sec.  224 ;  Smith, 

1 0.   Code,   sec.   5960 ;    Woods,   44  W.  643. 

O.  S.  455,  456.  6  Young,  18  Minn.  f'O.     Cf.  Roe,  14 

2  Bird,   W.   98 ;    Dunlap,  W.   210 ;  Hun,  612 ;  Smith,  4  Paige,  432. 
Mansfield,  W.  284 ;  Richards,  W.  302.  7  Burnes,  60  Ind.  259. 

3  Lattier,    5    O.    538 ;    Randall,   31  «  O.  Code,  sec.  5689. 
Mich.   194;    Germond,  6  Johns.  Ch. 

347  ;  Boone's  Pldg.,  sec.  141. 


4:02  DIVOKCE    AND    ALIMONY.  [§§  498-500. 

wife  living  at  the  time  of  the  marriage  from  which  the  divorce 
is  sought.  2.  Wilfal  absence  of  either  party  from  the  other 
for  three  years.  3.  Adultery.  4.  Irapotency.  5.  Extreme 
cruelty.  6.  Fraudulent  contract.  7.  Any  gross  neglect  of 
duty.  8.  Habitual  drunkenness  for  three  years.  9.  The  im- 
prisonment of  either  party  in  a  penitentiary  under  sentence 
thereto;  but  the  petition  for  divorce  under  this  clause  shall 
be  filed  during  the  imprisonment  of  the  adverse  party. 

Sec.  498.  Causes  —  Husband  or  wife  living  at  time  of 
marriage. —  Divorce  may  be  granted  if  either  had  a  husband 
or  wife  living  at  the  time  of  marriage  from  which  the  divorce 
is  sought.^  The  court  raa^r,  in  cases  where  the  divorce  is 
sought  upon  this  ground,  in  its  discretion  admit  proof  of  co- 
habitation and  reputation  as  evidence  of  the  marriage  of  the 
parties;*  and  alimony  may  also  be  decreed  to  the  petitioner.' 

Sec.  499.  Petition  on  ground  of  prior  marriage. — 

Plaintiff  is  a  bona  fide  resident  of county,  Ohio,  and 

has  been  a  permanent  resident  of  the  state  of  Ohio  for  the 
year  last  past. 

On  the day ,  18 — ,  at  C,  in  the  county  of , 

Ohio,  she  was  married  to  the  defendant,  and  that  the  follow- 
ing named  children  were  born  as  the  issue  of  such  marriage, 
whose  names  and  ages  are  as  follows  {give  names  and  ages], 
[or,  to  which  marriage  there  have  been  no  children  born.]* 

At  the  time  of  the  marriage  of  plaintiff  to  said  defendant, 
the  said  defendant  had  a  wife  then  living,  to  whom  he  had 

theretofore    been   married   on   or   about  [j/ive  date  if 

known],  at . 

Plaintiff  therefore  asks  that  she  may  be  divorced  from  said 
defendant,  and  for  such  other  relief  as  is  proper. 

Sec.  500.  Causes  —  Absence  for  three  years. —  A  divorce 

will  be  granted  where  either  party  has  been  wilfully  absent 

for  three  years.^     It  is  wilful  absence  sufficient  to  authorize 

the  granting  of  a  divorce  where  a  wife  leaves  her  husband 

shortly  after  marriage,  declaring  that  she  will  not  be  confined 

to  one  man,  and  continues  absent  for  three  years ;  ^  or  where 

the  husband  has  left  the  wife  with  the  children  for  more  than 

three  years  without  contributing  to  their  support;^  or  where 

a  husband  sends  his  wife  to  see  her  brother  under  the  false 

1 0.  Code,  sec.  5689.  <  O.  Code,  sec.  5689. 

2  Houpt,  5  O.  539.  5  Milliner,  W.  138. 

3  Vanvaley,  19  O.  S.  588.  3  White,  W.  138. 


§  50U.]  DIVORCE    AND    ALIMONY.  463 

pretense  that  he  is  sick,  and,  availing  himself  of  her  absence, 
leaves  the  country,  and  continues  absent  for  three  years;'  or 
where  the  husband  sends  his  wife  to  her  friends  and  leaves  the 
country  without  any  known  cause,  remaining  absent  for  more 
than  three  years  ;2  or  where  a  husband  leaves  his  wife  and 
continues  drunk  about  the  streets  for  three  years  ;^  or  where 
the  wife  leaves  the  husband  after  a  quarrel  and  continues  ab- 
sent for  more  than  three  years,  refusing  to  return;*  or  where 
the  husband  converts  his  effects  into  money,  leaves  his  wife 
and  departs  for  a  foreign  country,  where  he  remains  for  three 
years  ;^  or  where  the  husband  leaves  his  wife  without  any 
known  cause,  remaining  away  for  more  than  three  years  ;^  or 
where  the  husband  is  lazy,  loitering  about,  neglecting  to  pro- 
vide for  his  family  for  more  than  three  years ;  ^  or  where  par- 
ties have  been  married  to  avoid  the  consequence  of  bastardy 
proceedings,  and  the  husband  refuses  to  live  with  the  wife  for 
more  than  three  years.^  Fear  on  the  part  of  the  wife  of  hav- 
ing too  many  children  is  not  cause  for  leaving  her  husband, 
and  her  absence  will  be  considered  wilful,^  It  is  not  wilful 
absence  for  a  man  to  frequently  leave  his  family  poorly  pro- 
vided, but  returning;  and  if  the  wife  afterwards  goes  to 
her  friends  and  the  husband  removes  to  another  country,  re- 
maining there  two  or  three  years,  the  time  is  too  uncertain  to 
constitute  wilful  absence  for  three  years.'"  But  where  a  man 
leaves  his  wife  with  a  scanty  supply  and  goes  off  for  months 
to  labor,  and  upon  his  return  finds  his  wife  has  gone  to  her 
friends  with  her  furniture,  it  does  not  constitute  wilful  ab- 
sence without  proof  that  he  went  after  her,  desired  her  to  re- 
turn or  informed  her  that  he  had  returned."  A  man  will  not  be 
divorced  for  the  absence  of  his  wife  among  her  friends,  where 
the  husband  used  undue  means  to  coerce  her,  she  beins:  a  child 
of  fourteen,  against  her  declaration  that  she  does  not  love  him, 
without  his  having  made  decided  efforts  to  win  her  affections 

1  Gossan.  AV.  147.  7  Amsden,  W.  66. 

2  St  John,  W,  211.  8  McQuaid,  W.  223. 

3  Clark,  W.  235.  9  Leavitt,  W.    719.     See  post,   sec. 

4  Thompson,  W.  470.  508,  and  note  8. 

5  Guembell,  W.  226.  lo  Johnston.  W.  454 

6  Roberts,  W.  149 ;  Wyatt,  W.  149.       "  Frarell,  W.  455. 


4<)-l:  DIVORCE   AND   ALIMONY.  [§  501. 

and  to  induce  her  to  live  with  him.^  Where  the  wilful  absence 
relied  upon  was  a  leaving  at  the  request  of  the  petitioner  or 
with  funds  furnished  her,  it  will  not  avail  her  as  a  ground  of 
divorce;-  and  wilful  absence  will  not  be  presumed  against  cir- 
cumstances tending  to  show  the  separation  by  the  procure- 
ment of  the  party  alleging  it.'  The  wilful  absence  must  be 
full  three  years,  and  it  will  be  computed  from  the  time  he  de- 
termines to  continue  away,  although  he  may  have  been  absent 
longer,  but  intended  to  return  when  leaving.*  An  agreement 
between  man  and  wife  to  divide  their  effects  and  their  subse- 
quent separation  cannot  lay  the  foundation  for  a  divorce  for 
wilful  absence.*  If  a  wife  refuse  to  support  a  drunken  hus- 
band or  longer  cohabit  with  him,  in  consequence  of  which  he 
leaves  her,  the  absence  is  not  wilful  on  his  part  to  entitle 
her  to  a  divorce  for  that  cause.^  If  the  husband,  having  left 
his  wife  two  months,  returns  and  makes  efforts  to  live  with 
her,  which  have  failed  from  any  cause,  he  cannot  be  regarded 
as  wilfully  absent  from  her;'^  or  where  the  absence  is  under 
an  agreement  of  separation,  or  there  is  collusion  or  condo- 
nation, there  can  be  no  decree  of  divorce.^  Where  the  evi- 
dence tends  to  create  suspicion  that  the  parties  separated 
without  good  reasons  and  were  anxious  to  be  divorced,  the 
court  w^iil  be  slow  to  grant  the  divorce.^  Mere  separation  does 
not  give  a  cause  of  divorce;  and  absence  to  be  a  cause  must 
be  wilful,  and  is  not  inferred  from  the  fact  of  separation.^** 
Sec.  501.  Petition  for  wilful  absence. — 

[Averments  as  in  ante,  sec.  ^PP.*] 

Plaintiff  further  says  that  the  said  defendant  has  been  wil- 
fully absent  from  plaintiff  for  more  than  three  years  last  past, 
and  wholly  disregarded  all  marital  duties. 

[Prayer,  etc.'] 

Note. —  Want  of  affection  between  husband  and  wife  is  no  defense  to  an 
action  by  the  husband  for  divorce  on  the  j^round  of  desertion.  Taylor  v. 
Taylor,  45  N.  W.  Eep.  307 ;  Lane  v.  Lane,  67  la.  76. 

1  Bigelow,  W.  416.  8  Mansfield,  W.  284 ;  McDwire,  W. 

2  Barnes,  W.  475.  354. 

3  Scott,  W.  469.  9  Wolf,  W.  243,  as  it  will  not  grant 

4  Reed,  W.  234.  a  divorce  by  consent.   Smith,  W.  643. 

5  Van  Vorhees,  W.  636.  lo  Ferree,  7   W.  L.  B.  302 ;  Thomp- 

6  Helser,  W.  210.  son,  1  S.  &  T.  231. 

7  Friend,  W.  639. 


§§  502-504.]  DIVORCE    AND   ALIMONY.  465 

Sec.  502.  Causes  —  Adultery. —  As  heretofore  stated,^  when 
divorce  is  sought  upon  this  ground,  the  petition  must  set  forth 
the  name  of  the  person  with  whom  adultery  was  committed, 
and  if  not  known  the  want  of  knowledge  must  be  averred, 
and  a  reason  given  for  the  omission.  It  must  also  be  charged 
to  have  been  committed  at  a  particular  place.^  An  allegation 
that  adultery  was  committed  "  with  a  certain  woman  "  is  un- 
certain and  not  therefore  a  compliance  with  the  statute.'  A 
decree  will  be  granted  for  a  single  act  of  adultery,*  and  it  may 
be  inferred  from  the  fact  that  a  man  passed  the  night  alone 
in  a  room  with  a  woman.*  One  who  has  himself  committed 
adultery  cannot  procure  a  divorce;*  nor  can  a  man  who  has 
been  divorced  from  a  woman  whom  he  had  seduced  while  the 
wife  of  another,  and  whom  he  has  abandoned,  because  she  has 
committed  adultery  after  such  desertion."  Evidence  of  the  com 
mission  of  bigamy  in  another  state  is  not  proof  of  adultery.* 

Sec.  503.  Petition  on  ground  of  adultery. — 

[Averments  as  in  sec.  4^9.'^] 

That  since  said  marriage  was  contracted,  and  on  or  about 

the day  of ,  18 — ,  the  defendant  [at  the of , 

in  the  state  of ]  committed  adultery  with  one  I.  M. 

[Or,  That  on  or  about  the day  of ,  18 —  {or,  some 

time  in  the  month  of ,  in  the  year  18 — ),  the  defendant 

committed  adultery  with  one  F.  P.  at  the hotel,  in  the 

of ,  in  the  state  of ,  and  that  the  defendant,  at 

various  other  times  in  the  year  18 — ,  committed  adultery  with 
various  other  (women)  whose  names  are  unknown  to  the 
plaintiff,  at  certain  other  places  in  the  city  of .] 

Note. —  Coats:  A  court  cannot  require  a  petitioner  who  is  entitled  to  a 
decree  to  pay  the  costs  as  a  condition  preceflent  to  the  entry  of  the  same. 
State  V.  Bates,  5  O.  C.  C.  18 ;  Heffer  v.  Scranton,  27  O.  S.  579. 

Sec.  504.  Causes  —  Ini potency. —  Divorces  granted  on  the 
ground  of  the  irapotency  of  one  of  the  parties  are  rare  and  no 
new  cases  can  therefore  be  added.®     The  mere  fact  that  a 


^  Ante,  spc.  496;  Dunlap.  W.  210;  tions  have  sometimes  been  held  suffi- 

Richards,  W.  302;  Freeman.  31  Wis.  cient     Maxwell's  Pldg.,  178-9. 
235.  4  Wilson,  W.  128. 

ii  Smith,  W.   643;    Miller,   20  N.  J.        »  Fenger,  7  W.  L.  B.  304. 
Eq.  216-17;  Caldwell,  12  Hun,  92.  6  Maddox.  2  O.  233. 

3  Map.sfieUl,  W.  284  ;  Van  Vorhees,        ^  Mayer,  2  W.  L.  B.  47. 
W.  636.     Although    general   allega-        « Wilson,  W.,  128. 


'J  Keith.  W.  518. 


30 


4G6  DIVOKCE    AND    ALIMONY.  [§§  505,  506. 

woman  is  sterile  does  not  constitute  impotencv.'  The  petition 
in  this  case  must  specifically  state  that  the  impotency  existed 
at  the  time  of  the  marriage,^  that  it  was  unknown  to  the 
plaintiff,'  and  that  it  still  exists  and  is  incurable.*  A  voluntary 
separation  between  husband  and  wife  will  not  operate  as  a 
bar  to  a  divorce  upon  this  ground.^ 
Sec.  505.  Petition  on  gronnd  of  impotency. — 

[At^erments  as  in  sec.  J^OO."^] 

That  at  the  time  of  entering  into  the  marriage  with  said 
defendant  plaintiff  believed  her  to  be  a  woman  capable  of 
entering  into  the  marriage  state,  and  of  performing  all  the 
duties  and  relations  of  a  wife. 

That  he  took  her  to  his  residence  [or,  that  she  took  up  her 
residence  with  him],  and  for  the  space  of  six  months  endeav- 
ored to  cohabit  with  her  as  his  wife,  until  he  ascertained,  both 
from  his  own  knowledge  and  from  her  own  admissions  and 
confessions,  that  she  was  and  ever  had  been  physically  inca- 
pable of  cohabitation  or  sexual  intercourse,  or  of  entering  into 
the  marriage  state,  by  reason  of  [here  state  natm^e  of  incapacity]. 

And  jihiintiff  alleges,  upon  information  and  belief,  that  the 
said  defendant  was,  at  the  time  of  such  marriage,  physically 
incapable  of  entering  into  the  marriage  state,  and  that  such 
incapacity  still  continues  and  is  incurable.] 

[Oi\  That  the  defendant  was  wholly  impotent  at  the  time 
of  said  marriage  of  the  plaintiff  to  her,  and  still  continues  to 
be  so.] 

Sec.  506,  Causes  —  Extreme  cruelty. —  At  one  time  it 
was  considered  that  some  physical  violence  was  essential  to 
constitute  cruelty.^  But  the  modern  doctrine,  adopted  in  the 
interest  of  society,  does  not  confine  the  term  to  such  narrow 
limits.  A  general  definition  of  legal  cruelty  cannot  be  form- 
ulated, as  it  always  depends  upon  the  character,  habits  and 
disposition  of  the  parties,^  and  must  be  left  to  the  sound  dis- 
cretion of  the  courts.^  But  it  is  generally  conceded  that  such 
unjustifiable  conduct  as  will  wound  the  feelings,  endanger  the 
health,  destroy  the  peace  of  mind,  and  utterly  destroy  the 

iDevanbaugh,  5  Paige,  556.  Kempf,  34  Mo.  211-13;  Bascomb,  25 

2  Powell,   18  Kan.  371 ;  J.  G.  v.  H.  N.  H.  267 ;  Morrell,  17  Hun,  324 
G.,  33  Md.  401 ;  Bascomb,  25  N.  H.        » J.  G.  v.  H.  G.,  38  Md.  401. 
267.  6  Conn,  W.  563. 

3  Gulick,  41  N.  J.  L.  13 ;  J.  G.  v.  H.  ^  Kennedy,  73  N.  Y.  869 ;  Carpenter, 
G.,  33  Md.  401.  10  W.  L.  B.  409 ;  s.  C,  80  Kan.  718. 

*  Slagg  V.  Edgecomb,  3  S.  &  T.  240 ;        «  Duhme,  3  W.  L.  G.  186. 


II 


§  507. J  DIVORCE    AND    ALIMONY.  467 

very  objects  of  matrimony,  constitute  cruelty.'  Withholding 
medical  assistance  when  able  to  furnish  it; 2  profane,  obscene 
and  insulting  language  habitually  indulged  in  towards  a  per- 
son of  sensitive  nature  and  refined  feeling,^  or  charges  made 
of  want  of  chastity,*  or  subjection  to  excessive  sexual  inter- 
course,^  constitute  extreme  cruelty.  But  mere  words  will  not 
necessarily  constitute  cruelty.^  Eefusal  of  the  husband  to 
have  sexual  intercourse  with  the  wife  is  not  "cruel  and  inhu- 
man treatment"  authorizing  a  divorce.^  If  parties  cohabit 
after  the  commission  of  acts  of  cruelty,  the  same  are  con- 
doned and  cannot  be  relied  upon  as  a  ground  for  divorce.'  A 
divorce  will  sometimes  be  granted  for  one  act  of  cruelty  if  of 
an  aggravated  and  outrageous  character,  or  an  outgrowth  of  a 
continued  and  systematic  course  of  oppression.^  In  pleading 
cruelty  the  specific  acts  must  be  clearly  set  forth,'"  and  a  de- 
cree cannot  be  had  upon  proof  of  personal  violence  not  stated 
in  the  petition."  Cruelty  may  be  set  up  by  way  of  recrimina- 
tion as  a  defense.'- 

Sec.  507.  Petition  on  ground  of  extreme  cruelty.— 

[Ave)wients  as  in  a?ite,  sec.  4-99.^] 

That   the   defendant  has   been  guilty  of  extreme  cruelty 
against  this  plaintiff  in  this,  to  wit:  [State  fads.] 
\_Prayer.'\ 

Note.—  The  acts  of  cruelty  must  be  set  forth  in  detail. 

Alimony:  If  the^wife  has  means  of  her  own  no  alimony  will  be  allowed. 
Methven,  60  Am.  Dec.  664;  Kenemer,  26  Ind.  330;  Westerfield,  36  N.  J. 
hq  19a ;  Correy,  «1  Ind.  469.  It  should  appear  in  the  petition  that  the 
wite  has  no  separate  property  of  her  own.     Ross.  47  Mich,  185. 

1  Duhme,  3  W.  L.  G.   186;  Carpen-        Kelvin,  58  N.  H.  569. 
ter,  10  W.  L.  B.  409;  Green,  15  W.  L.        6  Hansel,  W.  212. 

B.    113;    Kennedy,   73   N.    Y.    369;  ^Schoessow,    83  Wis.    553;    Fritz, 

Gibbs,    18    Kan.    419;    Bennett,    24  138  111.  436 ;  14  L.  R  A.  685  and  note! 

Mich.  482.  8  Questel,  W.  491. 

2  Evans,  1  Hag.  Con.  35 ;  Dysert,  1  9  Hummel,  1  AV.  L.  B.   153 ;  Poor, 
liobt.  106 ;  1  Bisliop  on  M.  &  D.  735,  8  N.  H.  307 ;  Beyer,  50  Wis.  254 ;  Ma- 

3  Bennett,  24  Mich.  482 ;  Briggs,  20  son,  131  Pa.  St.  161. 

Mich.   34;  Green,  15  W.  L.  B.   113;  ">  Conn,  W.  563;  Walton,  20  How. 

Beebe,  10  la  133 :  Beyer,  50  Wis.  254 ;  Pr.  347 ;  Young,  18  Minn.  90. 

Powelson,  52  Cal.  358 ;  Whitmore,  49  u  Bennett,  24  Mich.  482. 

^^'^'^•417-  1-' Church,   16  R.  I.  667;  7L.RA. 

4  Green,  15  W.  L.  B.   113;  Beebe,  385;  19  Atl.  Rep.  344  (1890). 
10  la.  133;  Palmer,  45  Mich.  150. 


468  DIVORCE    AND    ALIMONY.  [§  507a. 

Sec.  507a.  Petition  on  ground  of  extreme  cruelty  and 

drunkenness,  and  for  alimony  where  husband  owns  real 

estate.— 

The  plaintiflp,  M.  G.,  says  that  she  is  a  bona  fide  resident  of 
the  county  of  H.  and  state  of  Ohio,  and  has  been  a  permanent 
resident  of  the  county  and  state  aforesaid  for  several  years 

last  past  [or,  one  year  last  past] ;  that  on  or  about  the 

day  of ,  18 — ,  at ,  she  was  married  to  the  defendant 

[and  that  ever  since  said  marriage  she  has  conducted  herself 
toward  the  said  defendant,  R.  G.,  as  a  faithful  and  obedient 
wife].  Plaintiff  says  there  are  no  children  as  the  issue  of  said 
marriage  [or,  the  issue  of  which  marriage  being  the  following 
children], 

1.  On  the day  of ,  18 — ,  the  said  defendant  [without 

any  just  cause  or  justification  whatever  so  far  as  this  plaintiff 
is  concerned]  was  guilty  of  extreme  cruelty  toward  her  by 
striking  her  with  his  fist  and  otherwise  beating  and  mal- 
treating her  in  a  shameful  manner.  And  plaintiff  further 
alleges  and  says  that  said  defendant  has  on  divers  and  sundry 
times  prior  to  the  day  of ,  18 — ,  been  guilty  of  ex- 
treme acts  of  cruelty  towards  her  by  striking,  beating  and 
threatening  to  kill  her;  and  that  said  defendant  has  on  va- 
rious occasions  within  the  last  three  years,  and  prior  to  the 
last  alleged  act  of  cruelty  herein  mentioned,  driven  her  from 
the  house  at  night-time,  when  she  would  be  compelled  to  re- 
main awa}^  for  hours  at  a  time. 

2.  Second  cause  of  action.  [Formal  averments],  and  says  the 
said  defendant  has  been  guilty  of  habitual  drunkenness  for 
more  than  three  years  last  past. 

Plaintiff  further  states  that,  in  addition  to  a  store  and  a 
large  amount  of  stock  therein  and  other  personal  property, 
the  said  defendant  is  the  owner  of  the  following  described 
real  estate,  to  wit :  [Description  of  realty.'] 

Plaintiff  further  says  that  she  has  not  cohabited  with  the 
said  defendant  for  more  than  one  year  last  past. 

Wherefore  plaintiff  prays  the  court  that  upon  the  hearing 
of  this  cause  she  be  divorced  from  said  defendant;  that  rea- 
sonable alimony  be  allowed  her  out  of  the  property  of  said 
defendant ;  that  she  be  restored  to  her  maiden  name,  M.  T., 
and  for  such  other  and  further  relief  as  in  equity  she  may  be 
entitled  to. 

Prayer  for  custody  of  children  and  alimony: 

Wherefore  the  plaintiff  prays  judgment  divorcing  the  said 
plaintiff  and  defendant  and  dissolving  the  said  marriage,  and 
that  the  plaintiff  may  be  awarded  the  custody  of  said  chil- 
dren [and  that  the  court  may  require  the  defendant  to  provide 
suitably  for  the  education  and  maintenance  of  the  said  chil- 


§  508.] 


DIVORCE    AND    ALIMOXY. 


469 


dren,  and  for  the  support  of  the  plaintiff,  and  that  she  may 
have  temporary  alimony  and  the  costs  of  this  action]. 

Sec.  508.  Causes  —  Fraudulent  contract. —  It  is  a  fraud 
for  a  pregnant  woman  to  represent  herself  virtuous  to  induce 
marriage,  and  to  take  means  to  prevent  discovery  of  her  con- 
dition, and  divorce  will  be  granted  under  such  circumstances.^ 
But  merely  representing  herself  chaste  when  in  fact  she  was 
not  is  not  such  fraud  a^  will  warrant  a  divorce.^.  Represen- 
tations as  to  respectability,  connections  in  society,  wealth,  or 
matters  of  this  kind,  are  not  such  frauds  as  will  warrant  a  de- 
cree for  divorce.^  In  the  interest  of  society  it  has  been  con- 
sidered that  want  of  chastity,  even  though  representations  to 
the  contrary  are  made  by  a  woman,  does  not  fall  within  the 
ground  mentioned  in  the  statute  as  fraudulent  contracts.* 
But  where  the  woman  is  pregnant  it  is  quite  different.*  A 
somewhat  peculiar  case  is  found  where  the  husband  or  man 
goes  through  the  marriage  ceremony  without  any  intention 
of  living  with  the  woman,  but  only  to  escape  bastardy  pro- 
ceedings. The  court  calls  it  an  unconsummated  marriage, 
voidable  at  the  election  of  the  wife,  annuls  it  and  grants  an 
absolute  divorce.^ 


1  Morris,  W.  630. 

2  Meyer,  4  W.  L.  B.  368-70. 

3  Meyer,  4  W.  L.  B.  368 ;  Reynolds, 
3  Allen,  605;  Clarke,  11  Abbott's  Pr. 
228;  Carris,  24  N.  J.  Eq.  516;  Wier, 
31  Iowa,  110. 

4  Allen's  Appeal,  99  Pa.  St.  196. 
There  is  no  implied  warranty  of  chas- 
tity. Varney,  52  Wis.  120,  130;  s.  C, 
38  Am.  Rep.  726. 

^  Long,  77  N.  C.  304 ;  s.  C,  24  Am. 
Rep.  449;  Reynolds,  3  Allen,  605; 
Baker,  13  Cal.  87;  Morris,  W.  630; 
Carris,  24  N.  J.  Eq.  516. 

6  Miller  v.  Miller,  31  W.  L.  B.  141 
(Scioto,  Ohio,  Common  Pleas).  If  it 
is  an  unconsummated  marriage,  and 
hence  voidable,  how  can  the  court 
grant  a  divorce?  The  court,  how- 
ever, in  the  syllabus,  states  that  the 
marriage  is  annulled,  and  an  absolute 
divorce  {jranted.     From  tiie  opinion, 


the  question  of  fraudulent  contract 
seems  to  enter  into  the  case  very 
largely,  and  perhaps  was  the  ground 
for  divorce,  if  it  was  a  petition  for  a 
divorce.  This  is  not  disclosed.  If  it 
was  a  void  marriage,  the  petition 
should  have  been  based  upon  that 
ground.  It  may  have  been.  The 
court  follows  the  doctrine  laid  down 
by  Mr.  Bishop :  The  absence  of  inten- 
tion to  marry,  it  not  having  been 
afterward  consummated,  would  ren- 
der it  (the  marriage  contract)  void. 
1  Bishop's  M.  &  D.,  sec.  178.  The 
precedent  is  an  important  one.  It 
is  a  novel  way  of  being  relieved  from 
such  unfortunate  contracts,  but  the 
mode  of  relief  is  not  clearly  pointed 
out  If  the  marriage  is  void,  it  may 
be  annulled ;  but  a  divorce  cannot  be 
granted  if  there  is  no  cause  for  it. 
See  ante,  sec.  500,  p.  463. 


470  DIVORCE.  AND    ALIMONY.  [§§  509,  510. 

Sec.  509.  Petition  on  ground  of  fraudulent  contract. — 

[Ave?'Jnents  as  iii  sec.  1(39. *'\ 

Plaintiff  alleges  that  said  defendant,  for  the  purpose  of  in- 
ducing and  persuading  this  plaintiff  to  enter  into  said  mar- 
riage, falsely  and  fraudulently  represented  herself  to  be  a  virtu- 
ous and  chaste  woman,  when  in  truth  and  in  fact  she  was  not, 
but  was  then  pregnant  by  some  man  other  than  this  plaintiff. 

Plaintiff,  relying  upon  the  representations  so  made  by  said 
defendant,  and  believing  the  same  to  be  true,  entered  into 
said  marriage,  which  he  would  not  have  done  had  not  said 
false  representations  been  made  to  him.  That  immediately 
upon  discovering  that  said  representations  were  false,  to  wit, 

on  or  about  the day  of ,  18 — ,  he  ceased  to  live  and 

cohabit  with  said  defendant,  and  has  ever  since  remained 
away  from  her. 

\_0r\  That  the  consent  of  the  said  plaintiff  to  said  marriage 
was  obtained  by  fraud,  the  defendant,  for  the  purpose  of  ob- 
taining said  consent,  having  fraudulently  represented  to  the 
plaintiff,  prior  to  said  marriage,  that  [here  state  facts  constitut- 
ing the  fraudulent  representations'].,  which  representations  the 
plaintiff  believed  to  be  true,  and  was  induced  thereby  to  con- 
sent to  said  marriage,  and  entered  into  said  marriage  rel3nng 
upon  such  representations,  which  representations  plaintiff, 
after  said  marriage,  discovered  to  be  wholly  untrue.] 

Note. —  A  fraudulent  marriage  cannot  be  annulled  by  the  one  commit- 
ting the  fraud.  Tomppert,  26  Am.  Rep.  197;  Frolet,  14  Am.  Dec.  563.  A 
marriage  is  not  void  if  there  is  illicit  intercourse  before  marriage.  Crehore, 
97  Mass.  330 ;  s.  C,  93  Am.  Dec.  98. 

Sec.  510.  Causes  —  Any  gross  neglect  of  duty. —  The  de- 
termination of  what  is  gross  neglect  of  duty,  as  in  the  case 
of  cruelty,  must  be  left  largely  to  the  discretion  of  the  court, 
to  be  governed  by  the  peculiar  circumstances  of  the  case. 
The  expression  is  so  indefinite  that  it  is  difficult  to  formulate 
any  general  rule  by  which  every  case  can  be  determined  to 
fall  within  its  limits.^  The  statute  in  Ohio  is  silent  as  to  how 
long  the  neglect  shall  continue,  and  the  trial  courts  of  the 
state  in  some  earlier  cases  were  inclined  to  take  the  view  that 
it  partook  of  the  nature  of  cruelty  and  wilful  absence,  so  as 
to  require  endurance  for  three  years.^  But  this  is  not  now 
the  practice,  and  a  decree  will  be  made  for  neglect  for  a  less 
time,  as  circumstances  may  require.  Whatever  uncertainty 
may  attend  the  definition  of  gross  neglect  of  duty,  it  is 
certain  that  it  does  not  consist  in  the  husband's  merely  ab- 

1  Smith,  22  Kan.  699.  2Ziegler,  1  W.  L.  B.  163;  Nail,  3 

W.  L.  M.  328. 


§§  511,  51 2. J         DIVORCE  AND  AilMONY.  471 

senting  himself  from  his  wife ;  neither  is  it  gross  neglect  of 
duty  to  merely  fail  to  pi^ovide,  at  least  for  a  short  period  of 
time,  unless  attended  by  aggravating  circumstances.  It  must 
at  any  rate  continue,  not  three  years,  but  some  length  of 
time,  to  be  left  to  the  discretion  of  the  court.^  Any  gross 
neglect  of  duty  for  a  short  time  attended  by  aggravating  cir- 
cumstances will  warrant  a  decree;^  as  where  a  man  is  in- 
toxicated most  of  the  time  and  fails  to  give  sufficient  sup- 
port.^ In  pleading  gross  neglect  of  duty  it  is  not  proper  to 
merely  use  the  language  of  the  statute,  but  the  specific  acts 
which  it  is  claimed  constitute  the  neglect  must  be  stated.* 

Sec.  511.  Petition  on  ground  of  gross  neglect  of  duty  by 
failing  to  provide. — 

Plaintiff  says  that  she  has  beeh  a  resident  of  the  state  of 
Ohio  for  a  year  last  past,  and  has  a  honafide  residence  in  the 
county  of ,  in  the  state  of  Ohio. 

On  the day  of ,  18 — ,  at , county,  Ohio, 

she  was  married  to  the  defendant,  the  issue  of  which  mar- 
riage were  the  following  named  children :  [naining  them.'] 

The  defendant  for  more  than  three  years  last  past  has  been 
guilty  of  gross  neglect  of  duty  towards  plaintiff  in  that,  by 
reason  of  his  idleness  and  dissipation,  he  has  wilfully  failed 
and  neglected  to  provide  this  plaintiff  and  their  said  children 
with  food  and  clothing  and  the  common  necessaries  of  life,  so 
that  she  has  been  compelled  to  live  by  her  own  exertions  and 
labor,  and  on  the  assistance  and  charity  rendered  by  her  rela- 
tives, although  he  was  fully  able  to  properly  support  her  and 
their  said  children. 

\_Prai/er.'j 

Sec.  512.  Causes  —  HaMtual  drunkenness. —  To  constitute 
an  habitual  drunkard  within  the  meaning  of  the  statute,  a 
man  must  have  the  habit,  and  indulge  the  same  so  frequently 
as  to  become  excessive,  and  to  interfere  with  his  business  and 
render  marriage  intolerable.*  The  allegations  upon  this  ground 
may  be  made  in  the  language  of  the  statute,  without  stating 

1  Nichols,  8  AV.  L.  B.  88  (Ham.  Co.  ^ziegler,  1  W.  L.  B.  1G3. 

C.  P.,  1882);  Stevens.  8  R.  I.  557,  560;  *  Burner,  1   W.  L.  B.  164;  Dunbar, 

Holland,  8  W.   L.  B.  86;  Tiberghein,  1  Clev.  Rep.  14. 

8  W.  L.  B.  89;  Smith,  22  Kan.  699;  5  Stewart's  M.  &  D.,  sec.  276;  Ma- 

Peabody,  104  Mass.  195;  Ferree,  7  W.  lone,  19  Cal.  626.     See  Reynolds,  44 

L.  B.  302.  Minn.  132. 

-'  Holland,.8  W.  L.  B.  86 ;  Smith,  22 
Kan.  699. 


472  DIVORCE    AND    ALIMONY.  [§§  513-515. 

any  particular  facts.*  It  may  simply  state  that  the  "defend- 
ant has  been  guilty  of  habitual  drunkenness  for  three  years 
last  past." 

Sec.  513.  Causes  —  Imprisonment  in  penitentiary. —  It  is 
not  necessary  that  the  imprisonment  be  for  any  particular 
length  of  time.  It  is  said  that  the  conviction  must  be  finaU 
But  the  petition  for  divorce  shall  be  filed  during  the  impris- 
onment of  the  adverse  party.^ 

Sec.  514:.  Petition  on  gronnd  of  imprisonment. — 

[Averments  as  in  see.  4^9."] 

Plaintiff  saj^s  that  on  the day  of  ,  18 — ,  the  de- 
fendant vs^as  convicted  of  the  crime  of by  the  court  of 

common  pleas  of  county,  Ohio,  and  by  said  court  sen- 
tenced to  confinement  in  the  penitentiary  of  said  state  for  the 

term  of years,  which  said  judgment  and  sentence  is  in 

full  force  and  not  reversed,  and  said  defendant  is  now  con- 
fined as  a  prisoner  in  the  penitentiary  of  said  state  for  said 
crime. 

Sec.  515.  Service. —  If  the  defendant  be  a  resident  of  the 
state,  summons,  with  a  copy  of  the  petition,  shall  be  served  by 
the  sheriff  of  the  county  in  which  he  or  she  resides  at  least 
six  weeks  before  the  cause  is  heard.*  If  the  defendant  is  a 
non-resident  or  his  residence  is  unknown,  service  must  be 
made  by  publication  as  in  other  cases.^  If  the  residence  is 
known  to  the  plaintiff,  a  copy  of  the  summons  and  of  the  peti- 
tion shall  be  mailed  to  the  defendant.  This  requirement  can 
only  be  dispensed  with  by  filing  an  affidavit  that  the  residence 
of  the  defendant  is  unknown  and  cannot  with  reasonable  dili- 
gence be  ascertained.^  The  publication  of  the  notice  may  be 
made  immediately  upon  the  filing  of  the  petition  and  affidavit 
without  any  order  of  court  for  that  purpose.  It  would  be 
much  better  to  present  the  affidavit  to  the  court,  and  have  an 
order  made  upon  the  journal  authorizing  service  by  publication. 
Personal  service  may  be  made  by  an  officer  outside  of  the 
state.'  Service  need  not  be  made  upon  the  filing  of  a  cross 
petition  by  the  defendant.^ 

1  Burns,   13  Fla.   369 ;    Golding,  6        « O.  Code,  sec.  5693, 

Mo.  App.  603 ;  3  Bishop,  M.  &  D.,  sec.  6  O.  Code,  sees.  5693, 5048. 

6846.  6  0.  Code,  sec.  5693. 

2  Vinsant,  49  la,  639.     See  Cone,  58  7  Holland,  39  W.  L.  B.  98. 
N.  H.  153.  8  Young,  9  W.  Lu  B.  34 

3  O.  Code.  sec.  5689. 


§§  5 16-51  S.J  DIVOKCE    AND   ALIMONY.  473 

Sec.  516.  Affidavit  for  service  by  publication. — 

M.  C,  the  plaintiff  in  the  above-entitled  action,  being  first 
duly  sworn,  says  that  this  action  is  brought  against  the  de- 
fendant J.  C.  in  this  court  for  divorce,  according  to  the  statute 
in  such  case  made  and  provided  ;  that  the  residence  of  the  said 
defendant  is  to  this  plaintiff  unknown,  and  that  she  has  been 
unable  by  the  exercise  of  reasonable  diligence  to  ascertain  the 
same;  for  that  reason  service  of  summons  and  a  copy  of  the 
petition  cannot  be  made  in  this  state,  nor  is  the  said  plaintiff 
able  to  mail  a  copy  thereof  to  said  defendant's  place  of  resi- 
dence. 

Note. —  See  form  of  legal  notice  in  1  Bates'  Pldg.,  p.  423. 

Sec.  517.  Effect  of  foreign  divorce. —  It  is  settled  law,  sup- 
ported by  numerous  authorities,  that  a  decree  of  divorce 
granted  in  a  state  in  which  neither  of  the  parties  was  domi- 
ciled is  beyond  the  limits  of  such  state  and  a  nullity.*  The 
question  of  the  jurisdiction  of  the  court  is  always  open  to  in- 
quiry, and  a  decree  rendered  without  jurisdiction  must  nec- 
essarily be  void.2  The  one  domiciled  in  the  state  may  ask  for 
divorce  and  alimony  notwithstanding  the  fact  that  the  other 
has  procured  a  divorce  in  another  state.*  And  in  Ohio,  where 
the  wife  has  procured  a  divorce  in  another  state,  she  may  be 
allowed  to  return  to  the  former  state  and  file  her  petition  for 
alimony  and  subject  property  of  her  husband  to  payment  of 
the  same.*  A  divorce  granted  by  the  courts  of  another  state 
without  personal  service  when  onl}''  the  plaintiff  is  a  resident 
of  that  state  will  not  affect  the  property  rights  of  the  defend- 
ant.* 
Sec.  518.  Petition  to  nullify  marriage  with  imbecile. — 
The  plaintiff,  F.  M.  M.,  guardian  of  D.  H.,  alleges  the  fol- 
lowing facts,  viz.:  Said  D.  H.  is  an  imbecile  ])erson,  and  has 
been  an  imbecile  and  feeble-minded  from  his  birth,  and  is  and 
has  been  wholly  incapable  to  transact  business  or  to  make 
contracts  for  any  purpose  by  reason  of  his  imbecility  and 
want  of  capacity  to  consent  thereto. 

1  Van  Fossen  v.  State,  37  O.  S.  320;  2  Thompson  v.  Whitman,  18  Wall. 

Watkin8,1251nd.  163,  and  cases  cited;  467;  Van  Fossen   v.  State,  37  O.  S. 

Sewell,  122  Mass.  156;  Cox,  19  O.  S.  320,  and  cases  cited. 

502 ;  Hoffmar,  46  N.  Y.  30 ;  Hood  v.  3  Cox,  19  O.  S.  502. 

State,  56  Ind.  263 ;  People  v.  Dowell,  *  Woods  v.  Waddle,  44  O.  S.  449. 

25  Mich.  247 ;  Litowich,  19  Kau.  451 ;  »  Doerr  v.  Foisythe,  31  W.  L.  B.  43; 

Woods  V.  Waddle,  44  O.  S.   449;  16  50  O.  S.  726;  Mansfield  v.  Mclntyre, 

W.  K  B.  357 ;  15  W.  L.  B.  232 ;  13  W.  10  O.  27;  McGill  v.  Deming,  44  O.  S. 

L.  B.  4.  645. 


4:74  DIVORCE   AND   ALIMONY.  [§  519. 

PlaintifiF  says  that  his  said  ward  is  the  owner  of  certain 

lands  situate  in county,  Ohio,  and  particularly  described 

as  follows:  [^Oive  description.'] 

Said  plaintiff  further  avers  that  his  ward  is  in  possession  of 

a  personal  estate  of dollars  in  addition  to  the  said  real 

estate. 

Plaintiff  further  avers  that  said  ward  has  been  under  guard- 
ianship since  he  became  possessed  of  said  real  and  personal 

estate,  and  that  on  the day  of ,  18 — ,  this  plaintiff 

was    duly  appointed  by  the  probate  court  of county, 

Ohio,  guardian  of  the  person  and  estate  of  said  imbecile,  and 
thereupon  duly  qualified,  and  is  now  the  duly  acting  and 
qualified  guardian  of  the  person  and  estate  of  said  imbecile, 

as  is  fully  shown  by  the  records  of  the  probate  court  of 

county,  Ohio. 

Plaintiff  says  that  heretofore,  to  wit,  on  the day  of 

18 — ,  without  his  knowledge  and  consent,  and  in  fraud 


of  the  rights  of  said  imbecile  ward,  he,  the  said  imbecile,  was 

taken  to  the  state  of ,  away  from  his  residence  in  this 

state,  and  not  the  residence  of  the  defendant,  and  a  pretended 
marriage  was  then  attempted  to  be  solemnized,  whereby  said 
imbecile  should  become  the  husband  of  the  defendant,  T.  R. 
That  said  pretended  marriage  was  brought  about  wholly  by  a 
fraudulent  conspiracy  on  the  part  of  the  defendant  and  other 
persons  unknown  to  this  plaintiff,  with  the  intention  and  for 
the  purpose,  as  the  plaintiff  believes  and  charges,  of  securing 
some  interest  in  or  support  from  said  imbecile's  estate. 

Plaintiff  says  that  said  imbecile  was  and  is  wholly  and  en- 
tirely incapable  of  contracting  marriage,  and  that  he  had  no 
capacity  to  consent  thereto.  That  said  pretended  marriage  is 
an  absolute  nullity,  and  should,  for  the  protection  of  the  es- 
tate of  said  imbecile,  and  of  social  order  and  public  decency, 
be  so  declared  by  the  court. 

Plaintiff  therefore  prays  that  said  pretended  marriage  be 
declared  a  nullity,  absolutely  void  and  of  no  effect,  and  that 
said  defendant,  T.  P.,  be  forever  restrained  from  asserting 
any  interest  in  or  deriving  any  support  from  the  estate  of  said 
imbecile,  and  for  other  relief  to  which  he  may  be  entitled. 

Note. —  From  Reynolds  v.  Moore,  Supreme  Court,  unreported,  No.  1942. 
A  marriaf^e  with  one  affected  with  congenital  imbecility  of  mind  so  as  to 
render  him  incapable  of  consent  is  void.  Waymore  v.  Jctmore,  22  O.  S.  271 ; 
Wightman,  4  Johns.  Ch.  343;  Crump  v.  Morgan.  3  Ired.  Eq.  9.  The  guard- 
ian of  such  person  may  maintain  an  action  to  declare  such  pretended  mar- 
riage void.     Id. 

Sec.  519.  Petition  to  annul  marriage  with  minor. — 

That  the  plaintiff  is  now  and  has  been  a  hona  fide  resident 
of  the  state  of  Ohio  for  the  year  last  past,  and  a  hona  fide  resi- 
dent of  the  county  of . 

That  on  the day  of ,  18 — ,  the  plaintiff  was  mar- 
ried to  the  defendant. 


§§  520,  521.]  DIVOECE    AND   ALIMONY.  475 

That  at  the  time  of  said  marriage  the  plaintiff  was 


years  of  age,  and  incapable,  from  want  of  age,  of  contracting 
said  marriage  contract. 

That  on  the day  of ,  IS — ,  the  plaintiff  separated 

from  the  defendant  and  repudiated  said  marriage,  and  they 
have  not  since  cohabited  or  lived  together  as  husband  and  wife. 

[That  the  plaintiff's  name  at  the  time  of  her  marriage  was 
A.  C] 

Wherefore  the  plaintiff  prays  that  said  marriage  be  declared 
void  [and  that  she  be  permitted  to  resume  her  said  former 
name]. 

Note. —  There  can  be  no  marriage  without  consent,  and  a  marriage  when 
one  lacks  the  capacity  to  consent  is  ineffectual  and  void  ab  initio.  Way- 
more  V.  Jetmore,  22  O.  S.  271. 

Sec.  520.  The  answer. —  A  defendant  may  set  up  such  de- 
fenses as  he  may  have,  and  may  file  a  cross-petition  asking  a 
divorce.^  If  the  defense  be  a  condonation,  or  if  it  be  a  recrim- 
inatory'charge  in  bar,  the  same  should  be  set  forth,^  although 
there  are  cases  which  hold  that  a  defendant  may  prove  any 
defenses  under  a  general  denial,'  excepting  acts  of  adultery 
by  way  of  defense,  which  must  be  pleaded  with  the  same 
strictness  as  in  the  petition.*  The  public  being  interested 
in  divorce  proceedings,  if  there  are  any  defenses  discovered, 
even  though  not  pleaded,  the  same  will  not  be  granted.*  Mr. 
Bishop  states  the  correct  rule,  as  evidence  may  be  introduced 
showing  any  facts,  such  as  adultery,  on  the  part  of  plaintiff, 
not  entitling  him  to  a  divorce,  whether  an  answer  is  filed  or 
not.® 

Sec.  521.  Forms  of  answer, — 

That  the  defendant  denies  each  and  every  allegation  of  the 
complaint. 

[Or,  in  case  of  adtdieri/,  That  this  cause  of  action  was  not 
commenced  within  two  years  after  the  plaintiff  had  discov- 
ered the  offense  charged  in  the  petition.] 

[Or,  in  case  of  adulter y,  That  the  plaintiff  has  voluntarily 
cohabited  with  defendant,  with  a  full  knowledge  of  the  facts 
alleged  in  the  petition.] 

[Or,  in  case  of  adultery.  That  the  offense  of  adultery  charged 
in  the  petition  was  committed  with  the  connivance  and  con- 
sent of  the  plaintiff.] 

1  Stewart,  M.  &  D.,  sec.  340.  *  Pollock,   71   N.   Y.  137 ;  Tim,  47 

2  Smith,  4  Paige,  432.  How.  Pr.  253 ;  Mitchell,  61  N.  Y.  398. 

3  Backus,  3  Me.  136 ;  Shackett,  49  5  Bishop's  M.  &  D.,  sees.  478-98,  619. 
Jle.  195;  Sickles  v.  Carson,  26  N.  J.  6  Id. 

E.].  440. 


476  DIVOKOE    AND    ALIMOUY.  [§§  521(2,  522. 

[Or,  in  case  of  adultery,  That  on  the day  of ,  18 — 

(and  at  various  other  times  thereafter),  the  plaintiff  comniitted 
the  crime  of  adultery  with  one  E.  F.] 

[Or,  That  since  the  bringing  of  this  action  the  plaintiff  and 
defendant  have  lived  and  cohabited  together  as  husband  and 
wife.] 

[0?',  That  after  the  offense  charged  in  the  petition,  the 
plaintiff,  with  a  full  knowledge  thereof,  voluntarily  condoned 
such  offense  and  forgave  the  defendant.] 

Sec.  521a.  Answer  and  cross-petition. — 

Defendant  admits  that  plaintiff  and  defendant  were  married 

on  the day  of 18 — ,  and   that  there  was   born  to 

them  [state  childreii],  but  denies  each  and  every  other  allega- 
tion in  said  plaintiff's  petition  contained  not  hereinbefore  ad- 
mitted. 

For  answer  and  cross-petition  defendant  says  that  [state 
any  of  the  causes  of  divorce,  as  in  ante,  sees.  503,  507,  509, 511, 
512,  etc.']. 

Sec.  522.  The  trial. —  The  cause  may  be  heard  and  decided 
at  any  time  after  the  expiration  of  six  weeks  from  the  service 
of  summons  or  of  the  first  publication  of  notice.^  If  the  de- 
fendant does  not  appear,  or,  having  appeared,  admits  or  denies 
the  allegations  of  the  petition,  the  court  shall  proceed  to  hear 
and  determine  the  cause;  and  if  the  evidence  proves  a  cause, 
the  court  may  pronounce  the  marriage  contract  dissolved.^ 
The  general  reputation  of  the  plaintiff  must  be  shown,  as  it  is 
an  issue  in  the  case,  and  the  plaintiff  should  be  prepared  to 
both  sustain  and  defend  it,  if  attacked.^  Proof  of  cohabita- 
tion and  reputation  of  the  marriage  of  the  parties  shall  be 
competent  to  prove  marriage,  and  may  be,  in  the  discretion 
of  the  court,  sufiicient  evidence  thereof.*  A  court  cannot  re- 
fuse to  try  a  cause  for  divorce  until  costs  incurred  in  other 
cases  for  divorce  by  the  same  plaintiff  are  paid.'  And  in 
rendering  a  decree  in  favor  of  one  entitled  thereto,  the  court 
cannot  require  a  petitioner  to  pay  the  costs  as  a  condition 
precedent  to  the  entry  of  the  same.* 

1  O.  Code,  sec.  5694.  5  state  ex  rel.  v.  Miller.  8  O.  C.  C. 

2  0.  Code,  sec.  5695.      As  to  evi-    10. 

dence,    see    W.    212,   354,   632,    128,  estate    v.   Bates,   5  O.   C.   C.   18; 

156,  161,  514,  559,  4.54,  416.  Heffner  v.  Scranton,  27  O.  S.  579.  The 

3  Harper,  W.  283.  entry   is   frequently   held   by  clerks 

4  O.  Code,  sec.  5698 ;  Lipen,  1  W.  until  costs  are  paid.     This  they  have 
L.  B.  164.  no  right  to  do,  but  must  put  the 


§§  523,  524.]  DIVORCE  and  alimony.  477 

Sec.  523.  Custody  of  minor  children. —  The  court  may 
make  such  order  respecting  the  disposition,  care  and  mainte- 
nance of  minor  children  as  may  seem  to  be  just  and  reason- 
able.^ The  jurisdiction  over  the  custody  of  minor  children  in 
divorce  proceedings  is  a  continuing  one,  and  an  order  may  be 
changed  or  modified  as  conditions  and  the  best  interests  of 
the  children  may  require.^  So  long  as  a  decree  in  reference 
to  the  custody  of  a  minor  in  divorce  proceedings  remains  in 
force,  the  same  cannot  be  interfered  with  by  proceedings  in 
habeas  corpus?  A  mother  who  has  been  granted  a  divorce 
and  awarded  the  custody  of  minor  children,  and  who  has  been 
decreed  alimony  which  did  not  include  support  for  the  minor 
children,  may  bring  an  original  action  against  the  father  for 
the  recovery  of  compensation  for  necessaries  furnished  bv  her 
to  such  children  in  any  other  court  than  that  in  which  the 
divorce  was  granted.* 

Sec.  524.  Petition  by  divorced  wife  against  father  for 
support  of  child. — 

Plaintiff  says  that  on  or  about  the  day  of ,  18 — , 

she  was  married  to  the  defendant;  that  the  issue  of  said 
marriage  was  a  son,  A.  J.  P.,  who  still  lives  and  is  now  of  the 
age  of years;  that  at  the term  of  the  court  of  com- 
mon pleas  of  the  county  of ,  in  the  state  of  Ohio,  18 — , 

such  proceedings  were  had  by  such  court,  in  a  certain  ac- 
tion for  a  divorce  therein  pending,  in  which  action  said  ])laint- 
iff  herein  was  plaintiff,  and  the  said  defendant  herein  was 
defendant,  that  in  said  action,  on  account  of  the  misconduct, 
ill-treatment  and  neglect  of  the  said  defendant,  by  the  judg- 
ment of  the  said  court  of  common  pleas  this  plaintiff  was  di- 
vorced from  said  defendant  and  awarded  the  custody,  nurture, 
education  and  care  of  their  said  minor  child,  A.  J.  P.  Plaint- 
iff further  says  that  ever  since  said  decree  of  said  divorce  was 
entered  this  plaintiff  and  said  defendant  have  lived  separate 
and  apart,  and  the  said  A.  J.  P.,  the  minor  son  of  the  said  de- 
fendant, has  been  boarded,  clothed  and  cared  for  by  this 
l^laintiff,  and  that  said  boarding,  clothing,  care  and  attention 

entry  on,  whether  costs  are  paid  or  not  be  taken  in  such  an  action,  as  an 

not     Under  this  rule  it  would  seem  order  requiring  the  father  to  pay  a 

that  the  clerk  could  not  refuse  to  file  a  certain    monthly  stipend  is   not  an 

petition  without  a  deposit.  order  for  the  payment  of  alimony. 

1  O.  Code,  sec.  5696.  Id. 

2  Hoffman,  15   O.   S.   427 ;  Rogers,  3  Hoffman,  15  O.  S.  427.    See  ch.  42, 
31   W.  L.   B.   118;  s.  c.  51  O.  S.   1;  sec.  655. 

Pfau,  8  O.  C.  C.  87.     An  appeal  can-        <  Pretzinger,  45  O.  S.  452. 


478  DIVORCE    AND    ALIMONY.  [§-525. 

SO  furnished  said  son  by  the  plaintiff  herein  were  necessary 
and  appropriate  to  his  comfort  and  condition  in  life,  and  were 

of  the  value  of  not  less  than dollars  per  year.     That  the 

said  defendant  is  possessed  of  the  following  property  [describe 
the  property]^  is  solvent,  and  well  able  to  keep  and  support  his 
said  minor  child.  There  is  due  and  owing  to  plaintiff  from 
the  said  defendant  for  said  boarding,  clothing  and  care  afore- 
said the  sura  of dollars  upon  an  account,  a  copy  of  which 

is  hereto  attached  and  marked  Exhibit  '*  A,"  in  which  said 
sum  plaintiff  asks  judgment  against  the  said  defendant. 

Note.— From  Pretzinger,  45  O.  S.  452. 

Sec.  525.  Allowance  of  alimony  in  divorce  proceedings. — 

If  the  divorce  be  granted  by  reason  of  the  aggression  of  the 
husband,  the  wife  may  be  allowed  such  alimony  out  of  the 
husband's  personal  or  real  estate  as  the  court  deems  reason- 
able. It  may  be  allowed  either  in  real  or  personal  property.^ 
Even  where  the  divorce  is  granted  by  reason  of  the  aggres- 
sion of  the  wife,  the  court  may  adjudge  to  her  such  share  of 
the  husband's  real  or  personal  property  as  it  deems  just  and 
reasonable."  Alimony  may  be  allowed  against  a  bigamist : ' 
and  unless  so  stated  in  the  decree,  the  subsequent  marriage  of 
the  woman  does  not  affect  the  allowance,  except  that  it  may 
furnish  a  ground  for  reducinof  the  amount  to  a  nominal  sum.* 
Eeal  estate  may  be  decreed  the  wife  as  alimony,^  and  all  the 
title  which  the  husband  had  therein  will  be  virtue  of  the 
decree  be  vested  in  her.®  The  adequacy  of  alimony  decreed 
cannot  be  collaterally  questioned  by  a  stranger,  as  by  a  per- 
son who  is  seeking;  to  recover  for  necessaries  furnished  the 
wife  during  the  pendency  of  the  proceedings."  Such  subse- 
quent allowance  may  be  made  to  the  wife  as  the  circumstances 
may  seem  to  require.^  Alimony  decreed  to  be  paid  in  in- 
stalments may  be  enforced  by  execution  for  the  instalments 
or  any  number  of  them  as  they  become  due,"  and  the  payment 
of  alimonv  may  be  enforced  by  imprisonment  where  the  de- 

1 0.  Code,  sea  5699.     For  form  of  548 ;  King.  38  O.  S.  370,  372 ;  Onley  v. 

petition    asking  alimony,   see  post,  "Watts,  43  O.  S.  499. 

sec.  527.  5  Broadwell  21  O.  S.  657. 

2  0.  Code,  sec.  5700;  Wolf,  W.  243.  6  Gallagher  v.  Fleury,  36  O.  S.  590. 

s  Vanvaley.  19  O.  S.  588.  "Hare  v.  Gibson,  32  O.  S.  3a 

4  Lockwood  V.  Krinn.  34  O.   S.   1 :  » King.  38  O.  S.  370. 

Stillman.  99  III.  196:  s.  c.  9  W.  L.  J.  » Piatt  9  O.  37. 


§  526.J  DIVORCE    AND    ALIMONY.  479 

fendant  is  able  to  pay  the  same.^  Even  where  there  is  no 
ground  for  divorce  and  the  court  finds  it  necessary  to  dismiss 
the  petition,  it  may  nevertheless  allow  the  wife  a  reasonable 
sum  as  alimony  where  the  parties  are  living  apart.'^  Alimony 
will  be  allowed  where  a  divorce  is  decreed  for  a  single  act  of 
adultery,  where  there  is  hope  for  reformation,  upon  the  theory 
that  it  is  not  wise  "to  turn  the  wife  loose  to  starvation  and 
prostitution;'"  and  so  where  a  decree  has  been  made  on  ac- 
count of  the  fault  of  the  applicant,  where  there  is  much  prov- 
ocation, and  the  parties  are  too  contentious  to  live  together,* 
or  where  the  decree  is  granted  because  of  the  wilful  absence 
of  the  husband,^  or  where  the  wife  has  been  abused  and  the 
abuse  is  forgiven  but  she  is  afterwards  abandoned.^  Alimony 
will  be  allowed  a  woman  asking  for  a  divorce  even  where  it 
appears  that  there  has  been  a  decree  of  divorce  granted  the 
husband  in  another  state,''  In  Ohio  she  may  prosecute  a 
suit  for  alimony  though  she  has  been  granted  a  divorce  in 
another  state.^  A  husband  may  not  be  entitled  to  a  divorce 
where  he  has  been  guilty  of  adultery,  yet  he  may  not  be 
obliged  to  render  support  to  a  wife  who  has  means  of  her 
own.^ 

Sec.  526.  Proceedings  for  alimony  alone. —  A  wife  may 
prosecute  a  separate  action  for  alimony,  or  she  may  file  her 
cross-petition  in  suit  for  divorce  commenced  by  her  husband 
with  or  without  a  prayer  for  divorce  when  the  husband 
has  committed  adultery,  or  any  gross  neglect  of  duty,  or  has 
abandoned  her  without  good  cause,  or  where  there  has  been 
a  separation  in  consequence  of  ill  treatment  on  the  part  of  the 
husband,  or  on  account  of  habitual  drunkenness,  or  imprison- 
ment in  a  penitentiary,^"  She  may  maintain  this  action  even 
though  she  has  been  granted  an  ex  parte  divorce  in  unothev 
state;"  and  she  need  not  be  a  resident  of  the  state  for  any 

1  Kaderabek,  3  O.  C.  C.  419 ;  Hand,  »  Amsden,  W.  66. 
25  W.  L.  B.  214;  Stewart  23  W,  L,  B.  ^Questel,  W.  491. 
38.  '  Cox.  19  O.  S.  502. 

2  Graves,  50  O.  S.  196;  ^9  W.  L.  B.  8  Woods  v.  Waddle,  44  O.  S.  449. 
256.  9  Meyer,  2  W.  L.  B.  48. 

3  Dailey,  W.  514.  lo  O.  Code,  sec.  5702. 

4  Bascoinb,  W.  633.  "Woods  v.  Waddle,  44  O.  S,  449, 


480  DIVORCE  AND  ALIMONY.         [^§  527,  528. 

particular  time  to  enable  her  to  bring  an  action  for  alimony 
only.^ 
Sec.  527.  Petition  for  recovery  of  alimony  only. — . 

Plaintiff  says  that  she  was  married  to  the  defendant  A.  B* 

on  the day  of ,  18 — ,  at .     The  following  named 

children  were  born  as  the  issue  of  such  marriage;  [JV^ames  and 
ages.'] 

Plaintiff  says  that  the  defendant  did  on  the day  of 

,  18 — ,  at in  the  city  of ,  county  of ,  commit 

adultery  with  one ,  etc.  [or  state  any  grounds,  as  m 

B.  S.,  sec.  5702\ 

The  defendant  is  the  owner  in  fee-simple  of  the  following 

described  property  situate  in  the  county  of ,  Ohio,  to  wit : 

[Description,  or  if  personal  property  describe  it.'] 

Plaintiff  therefore  asks  for  reasonable  alimony  for  the 
support  of  herself  and  children  and  expenses  during  the  pend- 
ency of  this  action,  and  that  upon  a  final  hearing  of  this 
cause  the  defendant  be  ordered  and  adjudged  to  pay  her  rea- 
sonable alimony  out  of  his  said  property,  and  for  such  relief 
as  is  proper. 

Note. —  The  residence  need  not  be  stated.    O.  Code,  sec.  5690. 

Sec.  528.  Allowance  of  temporary  alimony. —  The  court, 
or  a  judge  in  vacation,  may,  on  notice  to  the  opposite  party 
of  the  time  and  place  of  the  application,  grant  alimony  to  the 
wife  for  her  sustenance  and  expenses  during  suit,  and  may 
also  make  an  allowance  to  her  for  the  support  of  their  minor 
children  during  the  pendency  of  such  proceedings.  It  will  be 
allowed  to  defray  the  expenses  of  the  prosecution  and  main- 
tenance until  the  termination  of  the  suit  upon  affidavit  mak- 
ing a  prima  facie  case."-^  Alimony  may  be  allowed  by  the 
circuit  court  during  the  pendency  of  an  appeal,  upon  giving 
notice  to  the  opposite  party  as  in  the  action  in  the  lower 
court.^  The  allowance  of  temporary  alimony  at  chambers  is 
a  final  order  and  may  be  prosecuted  on  error.*  When  it  is 
made  to  appear  to  a  court,  or  a  judge  in  vacation,  that  the 
husband  is  about  to  dispose  of  or  incumber  property  so  as  to 
defeat  his  wife's  right  to  alimony,  the  court  may  grant  an 
injunction  with  or  without  bond.^     An  order  for  temporary 

1 0.  Code,  sec.  5690 ;  Woods  v.  Wad-  3  O.  Code,  sec.  5701. 

die,  Hupra;  Lithovvich,  19  Kan.  451.  *Kiiig,  CS  O.  S.  370. 

2  Johnston,    W.     454;     Dorsey    v.  ^O.  Code,  sec.   5701;   Tolerton   v. 

Goodenovv.  W.  120 ;  Martin,  W.  104 ;  Williard,  30  O.  S.  579. 
Wooley,  W.  245 ;  Edwards,  W.  308. 


g  529.]  DIVORCE    AND    ALIMONY.  481 

alimony  does  not  create  such  a  debt  as  will  warrant  punish- 
ment as  for  contempt,  and  payment  cannot  be  enforced  in 
this  manner.^ 

Sec.  529.  Petition  by  divorced  wife  against  her  divorced 
linsband's  widow  and  lieirs  to  enforce  payment  of  decree  for 
alimony  against  his  real  estate,  and  note. — 

At  the term,  18 — ,  of  this  court,  the  plaintiff  obtained, 

by  the  judgment  thereof,  a  judoment  and  decree  of  divorce 
from  tlie  bonds  of  matrimony,  and  for  alimony,  against  A.  M., 
then  her  husband.  By  said  decree  of  alimon}''  it  was  adjudged 
and  ordered  that  the  said  A.  M.  should  pay  to  the  ])laintiff,  as 

alimony,  the  sum  of  dollars days  after  the  close  of 

said  term,  and  the  sum  of  dollars  annually,  during  her 

natural  life,  on  the of in  each  of  said  years,  and  that 

if  such  sum  should  stand  unpaid  in  either  of  said  years  for  the 
period  of  ten  days  after  being  due  and  payable  as  aforesaid, 
execution  should  issue  against  said  A.  M.  to  satisfy  the 
same,  and  that  the  real  estate  of  said  A.  M.,  being  [description 
of  lands],  ^howld  be  held  and  charged  with  the  payment  of  the 
aforesaid  several  sums  of  money,  and  that  a  lien  should  be,  and 
was  by  said  decree,  created  to  secure  the  payment  of  the  said 
several  sums  of  money,  on  said  real  estate. 

On  or  about  the day  of ,  18 — ,  the  said  A.  M.  died 

testate,  and  afterwards  the  defendant  M.  C.  M.,  who  is  his 
widow,  was  appointed,  by  the  probate  court  of  this  county, 
administratrix,  with  the  will  annexed,  of  his  estate  —  the  will 
of  said  decedent  having  been  admitted  to  probate  by  said  pro- 
bate court.  She  accepted  the  appointment,  gave  bond  as 
such,  and  entered  upon  and  still  continues  in  discharge  of  said 
trust. 

After  the  rendition  of  said  decree  the  said  A.  M.  made  pay- 
ments upon  the  annual  sums  specified  therein  during  his  life- 
time, and  after  they  became  due  and  payable. 

But  the  sum  of dollars,  payable  according  to  said  decree 

on  the  of  ,  18 — ,  except  the  part  thereof  for  the 

period  up  to,  and  sums  of  the  same  amount,  payable  accord- 
ing to  said  decree,  annually  during  the  life  of  "^the  plaintiff, 

after  said day  of ,18—,  have  not,  nor  has  either  of 

them,  been  paid,  in  whole  or  in  part,  although  those  payable 

respectively  on  the  of  ,  18—,  and  the of  , 

18 — ,  and  the  interest  on  them  respectively,  after  maturit}'', 
have  each  long  since  been  due. 

The  defendant  M.  C.  M.  became  the  wife  of  said  decedent 
after  the  rendition  of  said  decree,  and  the  defendants  L.  and 

1  Stewart,  23  W.  L.  B.  38 ;  Ex  parte  Perkins,  18  CaL  60 ;  Haines,  35  Mich. 
i:38. 

31 


462  DIVORCE    AND    ALIMONY.  [§  529. 

R.  M.,  C.  P.,  E.  H.  and  N.  E.  were  given  by  said  w^ill  certain 
pecuniary  legacies,  and  to  the  other  defendants  said  testator, 
in  said  will,  devised  all  his  property  of  whatever  kind,  subject 
to  said  pecuniary  legacies.  But  whatever  right  of  dower  or 
other  right  the  defendant  M.  C.  M.  may  have  in  said  real  es- 
tate, and  whatever  lien,  right,  interest  or  claim  the  other  de- 
fendants, or  either  or  any  of  them,  may  have  in  said  premises, 
any  such  right,  title,  claim  or  interest  was  created  and  ac- 
quired subsequent  to  the  rendition  of  said  judgment  and 
decree  of  the  plaintiff,  and  is  subject  and  inferior  to  said  de- 
cree which  the  plaintiff  is  entitled  to  have  first  paid  and  sat- 
isfied. 

The  plaintiff  further  says  that  as  the  divorced  wife  of  said 

A.  M.,  she,  on  the day  of ,  18 — ,  in  an  action  in  this 

court  in  which  all  the  defendants  were  also  parties,  duly 
served  with  process,  obtained  an  assignment  of  her  dower  in 
said  premises,  which  was  made  by  the  commissioners  appointed 
for  that  purpose,  as  of  one-third  of  the  rents  and  profits  of 

said  premises,  which  was  valued  by  them  at  | per  year, 

which  assignment  and  valuation  the  court  approved,  and  or- 
dered the  same  to  be  paid  to  her  in  two  semi-annual  payments 

of  dollars  each,  on  the  of  and of  ■ 

of  each  year,  during  plaintiff's  life,  and  that  they  should  be  a 
lien  on  said  premises.  Said  lien  is  also  superior  to  any  title, 
claim  or  lien  of  the  defendants,  or  either  of  them,  on  said 
premises.  The  said  administratrix,  although  requested  by 
plaintiff,  has  refused  to  pay  said  sums,  or  either  of  them,  or 
any  part  thereof. 

The  defendants  A.  L.  and  C.  M.  are  minors  over  the  age  of 
fourteen  years,  and  the  defendants  S.  and  C.  M.  are  minors 
under  the  age  of  fourteen  years. 

The  plaintiff  therefore  prays  that  her  said  judgment  and 
decree  against  A.  M.  may  be  revived  against  his  said  adininis- 
tratrix  and  widow,  and  the  said  devisees,  under  his  will,  of 
said  real  estate ;  that  the  priority  of  her  said  decree  and  lien 
be  determined,  and  the  amount  due  under  said  decree  ascer- 
tained; and  for  a  judgment  and  order  for  sale  of  said  prem- 
ises to  pay  the  same,  and  for  other  proper  relief. 

Note. —  From  Marcliand  v.  Marchand,  Supreme  Court,  unreported,  No. 
1843. 

Decree  a  lien  on  real  estate. —  A  decree  for  alimony  payable  in  instalments 
to  become  a  lien  must  be  so  stated  in  the  decree.  Olin  v.  Hungerford,  10 
O.  269.  See  Tolerton  v.  Williard.  30  O.  S.  579.  But  a  decree  payable  in  gross 
operates  per  se  as  a  lien  upon  real  estate  of  husband  in  the  county  where 
the  same  is  rendered.  Conrad  v.  Everich,  50  O.  S.  476 ;  s.  c,  30  W.  L.  B. 
294;  4  O.  C.  C.  231.  See  Webster  v.  Dennis.  4  O.  C.  C.  315.  It  may  be  en- 
forced against  a  third  person  to  whom  the  premises  have  been  transferred 
subsequent  to  the  rendition  of  the  decree.  Id.  All  sums  ordered  paid  at 
once  become  genei-al  liens  without  being  so  expressed.  Kurtz  v.  Kurtz,  38 
Ark.  119.    See  R  S.,  sees.  5310,  5375,  5697,  5703.     The  claim  for  alimony  rests 


I 


§  529.]  DIVOKCE    AND   ALIMONY.  483 

on  the  common-law  liability  of  husband  to  support  the  wife.  Lockwood  v. 
Krum,  34  O.  S.  1.  A  judgment  for  alimonj'  creates  a  debt  of  record.  Chase 
V.  Chase,  105  Mass.  385.  Judgments  for  alimony  stand  on  same  footing  as 
other  judgments  for  money.  Frakes  v.  Brown,  2  Blackf.  295 ;  Keyes  v. 
Scanlan,  63  Wis.  345.  A  lien  cannot  be  declared  on  real  estate  situate  in  a 
county  other  than  where  the  decree  is  rendered.  Wilniot  v.  Cole,  23  W.  K 
B.  339.  A  decree  for  alimony  like  an  ordinary  judgment  will  become  dor- 
mant unless  kept  alive  by  executions.  MuUane  v.  Folger,  21  W.  L.  B.  277. 
On  decreeing  a  wife  a  separate  maintenance,  the  court  may  make  its  decree 
a  lien  on  the  husband's  realty  and  award  execution  for  the  collection  of  the 
instalments  as  they  become  due.     Johnson  v.  Johnson,  125  111.  510. 


CHAPTER  33. 


DOWER. 


SeCi  530.  Action  for  dower. 
531.  Petition  by  widow. 
533.  Incumbrances  may  be  pre- 
sented by  cross-petition. 
533.  Proceedings  generally. 


Sec.  534  Petition  to  discharge  land 
of  dower  of  insane  person 
and  proceedings  there- 
under. 
535.  Petition  bj-  widow  for  the 
enforcement  of  judgment 
for  dower. 


Sec.  530.  Action  for  dower. —  A  widow  or  widower  may 
file  a  petition  for  dower  in  the  court  of  common  pleas  against 
the  heir  or  other  person  having  the  next  immediate  estate  of 
inheritance,  or  any  other  estate  or  interest  therein,  which 
petition  should  set  forth  the  right  thereto  and  describe  the 
tracts  of  land  in  which  dower  is  claimed;  such  judgment 
should  be  made  as  appears  just  and  consistent  with  the  rights 
of  all  the  parties  interested  therein.^  A  proceeding  to  assign 
dower  is  regarded  as  a  civil  action.^ 

Sec.  531.  Petition  by  widow. — 

Plaintiff  says  that  on  the day  of ,  IS — ,  she  was 

married  to  J.  A.  C,  who  died  on  the day  of ,  18 — . 

The  said  J.  A.  C,  her  late  husband,  during  her  coverture 
with  him,  was  the  owner  of  and  seized  of  an  estate  of  inherit- 
ance in  the  following  real  estate,  situate  in  the  county  of 

state  of  Ohio,  to  wit:  \_Descrihe jy^ojyei'ty.'] 

The  defendant  A.  B.  now  claims  to  hold  the  estate  of  the 
said  J.  A.  C,  deceased,  in  said  premises. 

The  plaintiff  says  that  she  is  entitled  to  dower  in  said 
premises  as  the  widow  of  the  said  J.  A.  C,  deceased. 

The  plaintiff  prays  that  her  reasonable  dower  in  said  prem- 
ises may  be  decreed  her,  and  that  an  assignment  thereof  be 
made,  and  for  such  further  relief  as  equity  requires. 

Note.—  From  Corry  v.  Lamb,  43  O.  S.  390;  O.  Code,  sec.  5707.  Dower  is 
allowed  only  to  widow  or  widower  who  is  the  wife  or  husband  at  the 
time  of  the  death.  Rice  v.  Lumley,  10  O.  S.  596.  A  wife  divorced  for  the 
aggression  of  the  husband,  even  though  remarried,  is  entitled  to  dower. 
Lampkin  v.  Knapp,  20  O.  S.  454;  O.  Code.  sec.  5699;  Arnold  v.  Donaldson, 
46  O.  S.  73.  She  is  entitled  to  dower  in  what.  16  O.  S.  193 ;  28  O.  S.  503 ;  40 
O.  S.  391;  8  0.  S.  324;  1  Disn.  121;  21  O.  S.  509;  27  0.  S.  464;  39  O.  S.  172; 
12  W.  L.  B.  90 ;  2  W.  L.  B.  92 :  2  0.  C.  C.  136.  Dower  is  barred  by  adultery 
and  divorce  by  wife's  aggression.    R.  S.,  sec.  4192. 


»  O.  Code,  sec.  5703. 


«  Corry  v.  Lamb,  43  O.  S.  390. 


§§  532,  533.]  DOWER.  4S5 

Sec.  532.  lucumbrances  may  be  presented  by  cross-peti- 
ition. —  Any  person  who  has  any  claim  as  alien-holder  or  other- 
wise upon  the  premises  in  which  dower  is  sought  to  be  estab- 
lished may  set  forth  the  same  in  an  answer  and  cross-petition, 
and  such  rights  and  lien  shall  be  regarded  by  the  court.^ 

Sec.  533.  Proceedings  generally. —  If  the  land  in  which 
dower  is  sought  lie  in  several  counties,  the  petition  may  be 
filed  in  any  county  wherein  a  part  of  the  same  is  situate,  and 
the  court  of  common  pleas  of  such  county  shall  have  complete 
jurisdiction  and  may  order  the  whole  of  such  dower  to  be  asi- 
signed  in  any  one  or  more  of  such  counties  and  out  of  any 
one  or  more  of  such  tracts,  if  the  same  can  be  done  without 
prejudice  to  the  rights  of  any  person  who  may  have  a  lien 
thereon.-  If  the  plaintiff  die  before  the  assignment  has  been 
made  or  before  final  judgment,  the  action  may,  under  the 
statute,  be  revived  in  the  name  of  the  personal  representative.^ 
A  decree  may  be  rendered  for  a  sum  equal  to  one-third  of  the 
rental  value  of  the  real  estate  of  which  she  would  have  been 
dowable  had  she  lived,  from  the  time  of  filing  the  petition 
until  her  death,  after  deducting  one-third  of  the  expenses.* 
Three  disinterested  men  of  the  county  in  which  the  action  is 
brought  shall  be  appointed  commissioners  to  set  off  and  as- 
sign the  dower  in  the  manner  set  forth  in  the  judgment.*  If 
the  court  approve  the  assignment  made  by  the  commissioners, 
the  same  shall  be  entered  upon  the  records  and  execution 
shall  issue  to  put  the  widow  or  widower  in  full  possession.* 
If  a  division  cannot  be  made  by  metes  and  bounds,  dower 
shall  be  assigned  as  of  a  third  part  of  the  rents  and  profits.' 
In  partition  proceedings,  or  in  any  action  or  proceeding 
wherein  the  court  may  order  the  sale  of  real  estate  to  satisfy 
any  judgment  or  decree,  a  widow  or  widower  having  a  dower 
interest  therein,  being  a  party,  may  file  an  answer  and  waive 
the  assignment  of  dower  by  metes  and  bounds  and  have 
the  same  sold  free  of  such  dower,  and  have  allowed  in  lieu 

1  O.  Code,  sec.  5709.  Beam,  10  O.  498;  Dunseth  v.  Bank,  6 

2  R  S.,  sec.  5710.  O.  77 ;  Allen  v.  McCoy,  8  O.  417. 

3  O.  Code.  sec.  5711.  ^  O.  Code,  sec.  5718. 

<McGi!l  V.  Deming,  44  O.  S.  645-  'O.  Code,  sec.  5714.     As  to  the  as- 

661 ;  O.  Code.  sec.  5711.  signment  of  dower  during  pendency 

^O.    Code.   sec.    571:2.     See    as    to  of   action,   see  sec.  5715.     Improve- 

what  shall  be  taken  into  considera-  ments  must  be  included  in  estimating 

tion   by   commissioners,  Larrowe  v.  yearly  value  (R  S.,  sec.  5716). 


486  DowEE.  [§  534% 

thereof  such  sum  of  money  out  of  the  proceeds  of  the  sale  as 
to  the  court  may  seem  the  just  and  reasonable  value  of  such 
dower.^  And  even  though  a  widow  has  not  filed  an  answer 
in  the  action,  her  interest,  if  manifest,  will  be  protected  by 
the  court.'^  If  dower  has  been  allowed  out  of  the  proceeds  of 
a  sale,  the  widow  is  thereby  estopped  from  claiming  dower  in 
the  land  sold,*  An  answer  of  a  widow  or  widower  shall  have 
the  same  effect  as  a  deed  of  release  of  dower  to  the  purchaser.* 
A  guardian  of  an  insane  widow  or  widower  may  make  an 
election.^ 

Sec.  534.  Petition  to  discharge  land  of  dower  of  insane 
person  and  proceedings  thereunder. —  Any  person  who  owns 
real  estate  which  is  incumbered  by  a  contingent  or  vested 
right  of  dower  of  an  insane  person  may  file  a  petition  in  the 
court  of  common  pleas  of  the  county  in  which  such  real  estate  is 
situate,  making  such  insane  widow,  husband,  wife,  or  guardian 
defendant  thereto,  asking  to  have  the  property  sold  and  dis- 
charged and  unincumbered  of  such  dower.  The  petition 
should  set  forth  the  insanity  of  the  person,  together  with  a 
description  of  the  land  proposed  to  be  sold.  A  committee  of 
six  men  should  thereupon  be  appointed,  of  whom  at  least  three 
are  physicians,  whose  duty  it  shall  be  to  inquire  into  the  fact 
of  such  insanity ;  and  if  such  committee  reports  that  such  per- 
son is  permanently  insane,  the  court  shall  appoint  three  judi- 
cious freeholders  to  appraise  the  real  estate.^  The  court  may, 
upon  the  filing  of  the  report  of  such  committee,  order  the 
petitioner  to  convey  to  the  insane  person,  to  be  held  by  her 
in  fee,  such  portion  of  the  real  estate  as  shall  seem  to  the  court 
just  and  proper,  or  the  court  may  decree  to  such  insane  per- 
son, to  be  held  during  life,  after  the  death  of  the  husband  or 
wife  of  such  insane  person,  such  portion  of  the  real  estate  de- 
scribed in  the  petition  as  shall  seem  necessary  for  the  support 
of  such  insane  person.  Or  the  court  may  order  the  petitioner 
to  invest  a  fixed  amount  in  stocks,  the  profits  and  dividends 
arising  therefrom  to  be  applied  to  the  support  and  mainte- 
nance of  such  insane  person  after  the  death  of  the  husband  or 
wife  of  such  insane  person.     Upon  compliance  with  the  order 

1  O.  Code.  sec.  5719.  <  O.  Code,  aec.  6730. 

2  McDonald  v.  Aten,  1  O.  S.  293.  'O.  Code,  aec.  5731. 

3  Sweesey  v.  Shady,  22  O.  S.  333.  60.  Code,  sec.  5732. 


^  o35.]  DOWER.  4:87 

of  the  court  the  petitioner  may  sell  all  of  the  real  estate  free 
and  unincumbered  of  the  dower  of  such  insane  person.^ 

Sec.  535,  Petition  by  widow  for  the  enforcement  of  judg- 
ment for  dower. — 

Plaintiff  says  that  she  is  the  widow  of  J.  S.,  who  died  at 

D.  in  the  county  of .  Ohio,  on  the day  of ,  18 — . 

That  her  said  deceased  husband,  J.  S.,  and  the  said  M.  S.  were 
the  owners  in  common  of  the  following  described  real  estate 
situate  in  the  city  of  D.,  Ohio,  to  wit:  [^Descinhe property.'] 

That  at  the  time  of  the  death  of  her  said  husband,  J.  S.,  he 
was  the  owner  and  seized  in  fee-simple  of  the  undivided  half 
of  said  premises,  and  left  the  defendant  A.  S.  as  his  sole  heir 

and  the  plaintiff  as  his  widow.     On  the day  of , 

18 — ,  the  said  M,  S.  filed  his  petition  in  the  court  of  common 

pleas  of  count}^  Ohio,  against  the  said  A.   S.  and  this 

plaintiff  for  a  partition  of  the  said  premises,  and  for  the  assign- 
ment of  dower  to  this  plaintiff  as  the  widow  of  said  J.  S.,  de- 
ceased ;  and  that  such  proceedings  were  had  that  on  the 

day  of ,  18 — ,  the  said  court  found  that  the  said  M.  S.  and 

J.  S.  were  respectively  seized  of  an  undivided  half  of  said 
premises,  and  that  this  plaintiff  was  entitled  to  dower  in  the 
share  of  said  J.  S.,  and  thereupon  ordered  partition  of  prem- 
ises to  be  made,  and  that  the  dower  of  the  said  plaintiff  be 
assigned  by  metes  and  bounds,  if  practicable,  otherwise  as  of 
the  rents  and  profits ;  that  such  proceedings  were  had  that  the 

dower  interest  of  this  plaintiff  was  estimated  at dollars 

per  year  during  her  natural  life,  and  said  amount  was  duly 
assigned  in  said  proceedings  to  this  plaintiff,  which  said  assign- 
ment was  approved  and  confirmed  by  the  court.  That  in 
pursuance  of  an  order  made  by  said  court  in  said  proceedings, 
the  said  premises  were  sold  to  the  said  M.  S.  subject  to  the 

dower  interest  of  this  plaintiff  in  the  sum  of dollars  per 

year,  and  that  the  said  M.  S.  thereupon  entered  into  the  pos- 
session of  and  has  owned  the  said  premises  since  that  date, 
and  plaintiff    says   that    the  following   instalments   of  said 

dower  have  not  been  paid,  amounting  to  the  sum  of  

dollars:  [Here  give  the  instalments.'] 

That  said  dower  interest  is  a  lien  upon  the  said  premises, 
and  the  said  M.  S.  as  the  owner  thereof  is  a  trustee  for  the 
payment  thereof. 

Wherefore  plaintiff  prays  that  the  said  M.  S.  may  be  ad- 
judged and  decreed  to  pay  the  sum  of dollars,  being  the 

aggregate  of  said  annual  instalments,  with  interest  from  the 
dates  when  the  same  respectively  became  due,  and  that  in  de- 
fault of  such  payment  the  said  real  estate  be  sold  as  upon 
execution,  and  that  the  plaintiff  be  paid  the  amount  so  to  be 
adjudged  to  her  with  interest,  and  for  such  other  relief  as 
may  seem  proper. 

1 0.  Code,  sec.  5734. 


CHAPTER  34. 


ELECTION  CONTESTS. 


' 

finding  and  decision  of 

canvassing    board  as  tx> 

result  of  election. 

Sec.  541. 

Answer  of  contestee. 

542. 

Reply  of  relator. 

543. 

Precipe  for  notice  of  appeal. 

544. 

Notice  of  appeal  to  be  issued 

by  clerk. 

Sed  536.  Contest  for  county  offices. 

537.  Notice  of  appeal  in  contest 

for  county  office. 

538.  Hearing  of  contest 

539.  Contests  of  election  of  state 

and  judicial  officers. 

540.  Petition  on  appeal  to   the 

supreme  court  from  the 


Sec.  536.  Contest  for  county  offices. —  The  method  of  con- 
testing the  election  of  county  oflBcials  is  pointed  out  by  statute 
in  Ohio.  The  right  is  given  to  any  elector  of  a  county  by  an 
appeal  to  the  court  of  common  pleas  of  the  county  from  the 
decision  of  a  board  of  deputy  supervisors  of  election.  The 
contestor  must  file  a  notice  of  such  appeal  with  the  clerk  of 
court,  and  must  himself  give  notice  to  the  contestee  on  or 
before  the  thirtieth  day  after  the  day  of  election.^  The  ap- 
peal must  be  properly  perfected  within  the  prescribed  time 
to  give  the  court  juristliction,^  which  dates  from  the  declara- 
tion of  the  election  by  the  proper  officials.'  It  is  not  essential 
that  the  notice  contain  facts  sufficient  to  constitute  a  good 
case  for  the  contestor/  but  only  the  grounds,  or,  as  interpreted 
by  the  court,  the  "  points  "  accurately  stated,  so  as  to  apprise 
the  contestee  of  the  nature  of  his  objections.'  It  must  show 
that  the  contestor  was  either  a  candidate  or  an  elector.^  The 
manner  of  contesting  elections  is  purely  statutory,  and  the 
mode  there  prescribed  is  exclusive;  maiidamus  Vf\\\  not  lie  to 
compel  a  recanvass  of  the  vote.''  It  is  a  statutory  proceeding, 
no  right  to  the  prosecution  of  which  was  known  to  the  com- 


1  R.  S.,  sec.  2997. 

-  Ingerson  v.  Mario w,  14  O.  S.  568. 
a  Taylor  v.  Wallace,  31  O.  S.  151. 
*  Howard  v.  Shields,  16  O.  S.  184. 
5  R.  s.,  sec.  2997 :  Howard  v.  Shields, 
supra. 


^  Edwards  v.  Knight,  8  O.  375.  See 
Kieliborth  v.  Bernard,  2  W.  L.  B. 
171 ;  SUaub  v.  Wilson,  2  W.  L.  B.  158. 

'State  V.  Marlow,  15  O.  S.  672; 
Slate  \.  Simpson,  5  W.  L.  B.  422; 
Ingerson  v.  Berry,  14  O.  S.  315. 


§§  537-539.]  ELECTION   CONTESTS,  489- 

mon  law.  All  agree  that  the  questions  are  public  or  political, 
in  which  the  people  are  tlie  real  parties  in  interest,^  But  it  la 
said  that  the  remedy  by  contest  is  one  belonging  to  the  indi- 
viduali,  and  that  it  does  not  oust  the  jurisdiction  of  the  proper 
court  to  inquire  into  the  authority  of  any  person  assuming  the 
functions  of  a  public  office  by  proceedings  in  quo  warranto} 
In  the:  trial  of  contested  election  cases  for  county  officials  the 
general  rules  of  evidence  are  applicable.'  The  whole  subject- 
matter  is  transferred  to  the  court,  whose  duty  it  is  to  correct 
all  errors,  frauds  and  mistakes.* 
See.  537.  Notice  of  appeal  in  contest  for  county  office. — 
This  day  comes  A.  B.,  who  was  a  candidate  for  office  of 

sheriff  of county,  Ohio,  at  the  election  held  in  said  county 

on  the day  of ,  18—  [or,  an  elector  of  the  county  of 

,  etc.\  and  files  this  his  written  notice  that  he  has  appealed 

to  the  court  of  common  pleas  from  the  finding  and  decision 

of  the  board  of  deputy  supervisors  of  election  of county, 

Ohio,  of  the  result  of  the  election  of  a  sheriff  in  said  

county,  Ohio,  held  on  said day  of ,  18—. 

Note.— R  S.,  sec.  2997.  A  complete  copy  of  the  notice  to  be  served  on 
the  contestee  may  be  found  in  Howard  v.  Shields,  16  O.  S.  186. 

Sec.  538.  Hearing  of  contest.— The  parties  may  file  a 
motion  to  have  the  case  taken  up  and  have  any  matter  relating 
to  the  contest  determined ;  otherwise  it  will  be  heard  in  the 
regular  order  on  the  docket.' 

Sec.  539.  Contests  of  elections  of  state  and  judicial  offi- 
cers.—  The  legislature  of  Ohio  has  very  wisely  removed  con- 
tests of  election  of  state  and  judicial  ofiicers  from  the  higher 
branch  of  that  body  and  transferred  it  to  the  judiciary.  It 
is  provided  that  contests  of  election  of  common  pleas  and 
superior  court  judges  shall  be  had  by  an  appeal  from  the 
finding  and  decision  of  the  canvassing  board  declaring  the  re- 
sult of  such  election  to  the  circuit  court  of  the  county  in  which 
the  contestee  resides.^  The  supreme  court  is  given  exclusive 
jurisdiction  over  the  contest  of  elections  of  all  circuit  court 
judges,  supreme  court  judges,  and  of  all  state  officers.'    The 

1  State  V.  Harmon,  31  O.  S.  250 ;  ^  r.  §.,  sec.  3002.  As  to  method  of 
State  ex  rel.  v.  Stewart,  26  O.  S.  216 ;  procedure,  consult  sees.  2998  et  seq. 
Paine  on  Eltv-..  sec.  420.  of  statutes. 

2  Paine  on  Elec,  sec.  800.  6  89  O.  L.  363,  sec.  1, 

3  Sinks  V.  Reese,  19  O.  S.  306.  7  89  O.  L.  864,  sec.  6w 
*  Ingerson  v.  Berry,  14  O.  S.  315. 


490  ELECTION    CONTESTS.  f§  539. 

law  conferring  this  power  was  attacked  in  tiie  Fupreme  court, 
in  the  only  case  brought  under  it  so  far  -^William  T.  Wear 
against  Charles  C.  Shearer,  a  contest  of  the  election  of  circuit 
judge,  upon  a  motion  to  dismiss  the  proceeding  upon  the 
ground  that  the  supreme  court  had  no  jurisdiction  of  the  sub- 
ject-matter for  the  reason  that  the  law  conferring  the  same 
was  unconstitutional,  as  granting  original  jurisdiction  upon 
that  court  not  permitted  by  the  constitution.  The  constitu- 
tion provides  that  the  supreme  court  "shall  have  original  ju- 
risdiction in  quo  warranto^  mandamus,  habeas  corpus  and  pro- 
<;edendo,  and  such  appellate  jurisdiction  as  may  be  provided  by 
law."  *  The  law  in  question  requires  the  court  to  hear  the  case 
upon  depositions,  and  to  determine  the  contest  in  a  summary 
manner,^  It  may  be  true  that  it  requires  the  court  to  act  in 
reference  to  matters  which  partake  of  the  nature  of  original 
jurisdiction,  as  it  must  hear  evidence  and  render  judgment. 
But  there  is  another  provision  of  the  constitution  which  per- 
mits the  general  assembly  to  determine  by  law  before  what 
authority  and  in  what  manner  the  trial  of  contested  elections 
shall  be  conducted.^  It  was  also  urged  in  support  of  the  mo- 
tion to  dismiss  in  this  case  that  there  can  be  no  appeal  to  the 
supreme  court  except  from  the  finding  and  judgment  of  a 
judicial  tribunal;  and  yet  the  provision  of  the  constitution 
already  quoted :  "and  such  appellate  jurisdiction  as  maybe 
provided  by  law,"  is  very  significant.  Suffice  it  to  say  that 
the  motion  to  dismiss  for  want  of  jurisdiction  was  overruled, 
thus  giving  evidence  that  the  supreme  court  was  sufficiently 
satisfied  of  the  constitutionality  of  the  law  to  entertain  the 
contest.  The  case,  however,  was  never  heard  upon  its  merits.* 
The  mode  of  procedure  under  this  law  is  sufficiently  outlined 
in  the  forms  following,  which  may  be  modified  to  meet  the 
requirements  of  a  case  where  the  contest  is  brought  in  the 
circuit  court. 

1  Art.  4,  sec.  2,  Const.  21,  of  the  constitution,  the  legislature 

2  89  O.  L.  364  had  power  to  confer  the  hearing  of 
'  Art  2,  sec.  21,  Const  contests  of  election  on  the  supreme 
*  The  motion  was  in  fact  overruled  court,  and  expected  to  report  the  case 

upon  the  ground  that  the  court  con-    when  heard  upon  its^  merits,  but  it 
aidered  that  under  article  2,  section     was  settled. 


§  540.]  ELEOTION   CONTESTS.  491 


Sec.  540.  Petition  oa  appeal  to  the  supreme  court  froi 
the  finding  and  decision  of  canvassing  board  as  to  result  ( 


)D1 

as  to  result  of 
election. — 


In  the  Supreme  Court  of  the  Statb  of  Ohio. 

The  State  of  Ohio  ex  rel.  Will- 
iam T.  Wear,  Plaintiff, 
vs. 
Charles  C.  Shearer,  Defendant. 

To  the  Honorable  the  Supreme  Court  of  the  State  of  Ohio : 

And  now  comes  W.  T.  W.,  the  relator  herein,  and  shows  to 
the  court  that  he  is  an  elector  of  the  county  of  Champaign, 
state  of  Ohio,  which  county  is  in  the  second  judicial  circuit  of 
said  state,  and  that  he  was  such  elector  on  the day  of  No- 
vember, 18 — ,  and  as  such  had  a  right  to  vote  at  the  election 
held  on  said  day  for  any  candidate  for  judge  of  the  circuit 
court  of  the  said  second  judicial  circuit ;  he  further  says  that 
he  files  this  relation  and  brings  this  proceeding  by  way  of  ap- 
peal from  the  finding  and  decision  of  the  board  of  deputy 
supervisors  of  election  of  Franklin  county,  Ohio,  which  county 
is  the  county  in  said  judicial  circuit  having  the  greatest  popu- 
lation, and  which  board  of  deputy  supervisors  is  the  canvass- 
ing board  which  finds  and  declares  the  result  of  the  election 
of  circuit  judges  of  the  said  judicial  circuit ;  and  your  relator 
further  states  that  at  such  election  there  was  one  circuit  judge 
to  be  elected  for  said  judicial  circuit,  and  there  were  two  can- 
didates for  said  office,  viz. :  Charles  C.  Shearer,  who  was  the 
republican  candidate,  and  Frank  Chance,  who  was  the  demo- 
cratic candidate,  and  who  was  also  the  candidate  of  the  peo- 
ple's party,  and  on  the day  of ,  18 — ,said  canvassing 

board  found  and  declared  that  the  contestee  herein,  Charles 
C.  Shearer,  had  received  at  such  election  for  said  office  twenty- 
five  votes  more  than  the  said  Frank  Chance,  a  copy  of  which 
finding  and  declaration  is  hereto  attached,  marked  "Ex- 
hibit A,"  and  your  relator  hereby  and  herein  appeals  from 
such  finding  and  declaration  for  the  reasons  following,  viz. : 
In  the  county  of  Fayette,  in  said  circuit,  twenty-one  (21) 
votes  were  cast  for  F.  C.  for  the  said  office  by  electors  voting 
the  people's  party  ticket,  none  of  which  were  counted  for 
him,  to  wit:  Eleven  (11)  votes  in  western  precinct,  Union 
township,  etc. 

And  in  the  county  of  Darke,  in  said  judicial  circuit,  fifteen 
(15)  votes  were  legally  cast  for  the  said  F.  C.  for  the  said 

office  in  precinct,  and  other  voting  precincts  of  said 

county,  that  were  not  counted  for  him,  but  all  of  which  ballots 
were  sealed  and  sent  up  to  the  board  of  deputy  supervisors  of 


492  ELECTION   CONTESTS.  [§  541, 

elections  of  said  county  and  who  now  have  the  same  in  their 
possession.  i 

And  your  relator  further  states  that  in  their  finding  of  the 
aggregate  vote  cast  for  the  said  S.  and  C.  respectively  at  said 
election,  the  said  board  of  deputy  supervisors  of  elections  of 
Franklin  county  included  and  counted  in  the  vote  for  the  said 
C.  C.  S.  the  thirty -five  (35)  illegal  votes  so  cast  for  him  as 
aforesaid  in  Greene  and  Champaign  counties,  and  did  not  in- 
clude or  count  in  the  vote  for  said  F.  C.  the  lawful  votes  so 
as  aforesaid  cast  for  him  in  Fayette,  Clark,  Greene  and  Darke 
counties ;  and  your  relator  states  that  the  said  F.  C.  received 
at  said  election  a  majority  of  all  the  lawful  votes  cast  for  the 
said  office  of  circuit  judge  for  the  second  judicial  circuit  and 
was  duly. elected  to  said  office. 

Wherefore  your  relator  prays  that  the  finding  and  declara- 
tion of  the  board  of  deputy  supervisors  of  elections  of  Frank- 
lin county  may  be  reviewed  and  inquired  into  and  set  aside 
and  held  for  naught,  and  the  said  F.  C.  held  and  declared  to 
be  duly  elected  to  said  office,  and  that  the  court  make  such 
order  or  decree  and  award  such  process  as  may  be  proper  and 
necessary  in  the  premises.  D.  C.  J., 

Attorney  for  Relator. 

Tee  State  of  Ohio.  ~(  ^„ 
County.        ( 

W.  T.  W.,  the  plaintiff,  being  duly  sworn,  says  that  the 
statements  in  the  foregoing  pleading  are  true  as  he  verily  be- 
lieves. W.  T.  W. 

[Jurat.'] 

Note. —  From  Wear  v.  Shearer,  filed  m  supreme  court 

Sec.  541.  Answer  of  contestee. — 

[Capiicm.'] 

Now  comes  the  respondent,  C.  C.  S.,  and  for  his  answer 
herein  denies  that  at  the  election  for  circuit  judge  in  the  sec- 
ond judicial  circuit  of  the  state  of  Ohio,  held  on  the day 

of  ,  18 — ,  said  F.  C,  the  relator  herein,  was  the  candi- 
date of  the  people's  party  for  circuit  judge  for  said  judicial 
circuit. 

The  respondent  further  denies  that  in  said  county  of 

any  votes  were  cast  for  said  F.  C.  for  circuit  judge  for  said 
circuit  by  electors  voting  the  people's  party  ticket  which  were 
not  counted  for  him ;  he  denies  that  in  said  county  of  Clarke 
any  votes  were  lawfully  cast  for  said  Chance  for  said  office 
which  were  not  counted  for  him ;  he  denies  that  in  said  county 
of  Champaign  there  were  counted  for  said  C.  C.  S.  any  votes 
that  were  not  cast  for  him;  he  denies  that  in  said  county  of 
Greene  any  votes  were  lawfully  cast  for  the  said  F.  C.  for  the 


§§  542,  543.]  ELECTION   CONTESTS.  493 

said  office  by  electors  voting  the  people's  party  ticket  which 
were  not  counted  for  him.- 

\_Such  defenses  as  the  contestee  may  have,  may  he  stated  in  addi- 
tion to  formal  denials  as  above.'] 

"Wherefore  this  defendant  praj^s  that  this  proceeding  may 
be  dismissed,  ^nd  that  he  recover  his  costs  herein  expended. 

H.  J.  B., 
G.  K.  K, 
F.  A.  D., 
Attorneys  for  Respondent. 
Note. —  From  Wear  v.  Shearer,  Supreme  Court. 

See.  542.  Reply  of  relator. — 

And  now  comes  the  relator,  and  for  reply  to  the  first  de- 
fense in  the  answer  of  the  defendant,  C.  0.  S.,  set  out,  avers 
that  in  fact  and  in  law  said  defense  is  but  a  general  denial  of 
the  statements  of  the  relator's  petition,  but  the  relator  denies 
each  and  every  statement  contained  in  and  set  out  in  said  de- 
fense contradictory  to  and  inconsistent  with  the  statements 
of  the  relator's  petition. 

And  for  reply  to  the  second  defense  in  the  respondent's  an- 
swer set  out,  the  relator  denies  each  and  every  statement 
therein  contained,  except  the  statement  that  the  boards  of 
deputy  state  supervisors  in  said  several  counties  composing 
the  second  judicial  circuit,  returned  to  the  deputy  state  super- 
visors of  elections  of  Franklin  county  one  thousand  six  hun- 
dred and  forty-five  votes  cast  for  F.  C.  for  judge  of  the  cir- 
cuit court  for  said  circuit,  and  which  were  cast  for  him  by 
electors  voting  the  people's  party  ticket.  And  the  relator, 
for  further  reply  to  the  second  defense,  etc.  {make  specific  de- 
mands or  set  out  dfenses]. 

And  by  way  of  reply  to  the  tenth  defense  in  the  answer  of 
the  respondent  contained  and  set  out,  the  relator  says  that  he 
denies  each  and  every  allegation  thereof. 

"Wherefore  he  prays  as  in  his  petition  herein  he  has  prayed. 

D.  C.  J., 

L.  D.  J., 

Attorneys  for  Relator. 

Note. —  From  Wear  v.  Shearer,  Supreme  Court 

Sec.  543.  Precipe  for  notice  of  appeal.— 

{Caiytion.l 
To  Clerk  of  Supreme  Court: 

Please  issue  notice  of  appeal  in  the  above-entitled  case,  to- 
gether with  a  copy  of  the  relation,  directed  to  the  sheriff  of 

county,  Ohio,  and  serve  the  two'copies  on  the  contestee, 

C.  C.  S.,  in  the  same  manner  as  a  summons,  but  to  be  served 
within  five  days  from ,  18 — .  D.  C.  J., 

Attorney  for  Relator. 
Note.—  89  0.  L.  364,  sea  8. 


494  ELECTION    CONTESTS.  [§  544w 

Sec.  544.  Notice  of  appeal  to  be  issued  by  clerk, — 


SrPKEME    COUKT    OF    OeIO. 

ss. 


The  State  of  Ohio,         ) 
City  of  Cohimbus. 

To  the  Sheriff  of County,  Greeting: 

You  are  commanded  to  notify  C.  C.  S.  that  W.  T.  W.,  an 
elector  having  a  right  to  vote  for  any  candidate  for  judge  of 

the court,  etc.,^  has  filed  a  petition  in  appeal  from  the 

finding  and  decision  of  the  canvassing  board  upon  the  result 

of  the  election  of  circuit  judge  in  the judicial  circuit  of 

Ohio,  in  the  nature  of  a  relation  against  him  in  the  supreme 
court  of  the  state  of  Ohio;  and  that  he  is  required  to  answer 
to  said  relation  within  fourteen  days  from  the  day  of  service 
of  this  notice  upon  him.  A  copy  of  said  relation  and  the  ex- 
hibit therein  referred  to  is  furnished  herewith  to  be  served 
upon  him. 

You  will  make  due  service  and  return  this  writ  within  five 
days  from  the  date  hereof. 

Witness  my  name  and  the  seal  of  said  supreme  court,  etc. 

Note.—  89  0.  L.  364,  365,  sec.  8. 

1 89  O.  L.  364 


CHAPTER  35. 


EXECUTORS  AND  ADMINISTRATORS. 


Sec.  545.  Pleading  representative  ca- 
pacity. 

546.  Averment   of  appointment 

of  executor. 

547.  Form  of  allegation  of  ap- 

pointment of  administra- 
tor. 

548.  Statutory  actions  by  execu- 

tor or  administrator. 

549.  Action  by  executor  or  ad- 

ministrator to  complete 
contract. 

550.  Action  to  set  aside  fraudu- 

lent sale  of  real  estate 
and  to  sell  same  to  pay 
debts. 

551.  Petition  to  set  aside  fraudu- 

lent conveyance  and  for 
sale. 


Sec.  552.  Actions  against  executor  or 
administrator     individu- 
ally. 
55.3.  Actions  on  rejected  claims. 

554.  Petition  against  executor  or 

administrator  on  rejected 
claim. 

555.  Petition    on    unpaid    claim' 

allowed. 

556.  Defenses     to     actions     oa 

claims. 

557.  Actions  to  set  aside  errone- 

ous or  fraudulent  settle- 
.  ments. 

558.  Actions  for  recovery  of  dis- 

tributive share. 

559.  Petition  for  recovery  of  dis- 

tributive share. 


Sec.  545.  Pleading  representative  capacity.— It  is  a  rule 
too  well  settled  to  warrant  the  citation  of  authority  that  rep- 
resentative capacity  is  a  traversable  fact.  Yet  it  is  surprising,, 
upon  an  examination  of  pleadings  contained  in  cases  which 
have  reached  the  court  of  last  resort,  at  the  lack  of  uniformity 
in  practice.  In  the  more  populous  places,  where  every  inch  of 
ground  is  fought,  the  rule  is  uniformly  observed.  In  other 
places  no  objections  are  made,  and  hence  there  are  frequent 
violations  of  the  rule.  Every  fact  necessary  to  show  that  the 
appointment  has  been  duly  made  should  be  set  forth,  and  it 
should  be  shown  with  reasonable  certainty  that  the  remedy  is 
sought  in  a  representative  capacity.^  In  alleging  representa- 
tive capacity  of  an  executor,  the  fact  and  date  of  the  death  of 

1  Neil  V.  Cheney,  1   W.  L.  M  155 ;  See  Stihvell  v.  Carpenter,  62  N.  Y. 

Sheldon   v.   Hoy,   11   How.  Pr.    11;  639;  Dayton  v.  Connah,  18  How.  Pr. 

Forrest  v.  Mayor,  13  Abb.  Pr.  350;  826. 
Kingsland  v.  Stokes,  58  How.  Pr.  1. 


496  EXECUTORS    AND    ADMINISTRATORS.  [§  545. 

the  testator  should  be  stated;  that  he  left  a  will  in  which  the 
plaintiff  or  defendant  was  niaraed  as  executor;  that  the  will 
of  the  testator  was  duly  probated,  giving  the  date  of  the  issu- 
ance of  letters  testamentary,  and  that  the  plaintiff  or  defend- 
ant has  duly  qualified  and  entered  upon  the  duties  of  such 
executor.!  In  alleging  the  representative  character  of  an  ad- 
ministrator, it  is  held  to  be  sufficient  if  the  petition  shows  that 
the  plaintiff  filed  an  application  for  letters  of  administration  at 
a  certain  time  in  a  designated  court,  and  that  such  proceed- 
ings were  had,  that  he  w^as  duly  appointed  and  qualified  and 
that  letters  of  administration  were  issued  to  him.^  Merely 
giving  the  name  of  the  administrator  in  the  commencement 
of  the  petition,  and  attaching  the  words  "administrator  of 
C.  D.,  late  of ,  deceased,"  being  descriptive  only,  is  there- 
fore insufficient.^  Even  though  the  requirements  of  the  stat- 
ute have  not  been  complied  wnth  as  to  the  giving  of  a  bond,  a 
judgment  against  the  administrator  will  not  be  vacated  on 
that  account.*  Under  an  allegation  that  a  person  has  been 
appointed  administrator  by  proper  authority,  it  will  be  pre- 
sumed as  against  a  demurrer  that  he  has  taken  the  necessary 
steps  to  secure  the  appointment.*  "Where  a  petition  shows 
that  property  has  been  in  charge  of  two  administrators,  the 
letters  of  one  of  whom  have  been  revoked,  the  petition  should 
state  the  fact  of  such  revocation.^  The  omission  of  the 
word  "as,"  between  the  name  of  the  plaintiff  and  the  words 
descriptive  of  his  representative  capacity,  is  not  fatal.''  At 
common  law  the  issue  of  representative  capacity  could  be 
raised  only  by  plea  in  bar  or  abatement.  The  rule  remains 
the  same  under  the  code,  it  being  necessary  to  state  the  facts 

1  Kirsch  v.  Derby,  96  Cal.  602;  tliat  the  plaintiff  was  duly  appointed 
Hurst  V.  Addington,  84  N.  C.  143 ;  his  administrator  and  qualified,  is 
Barfield  v.  Price,  40  Cal.  535 ;  Hal-  held  sufBcient  to  show  that  the  ad- 
lock  V.  Mixer,  16  Cal.  574.  niinistrator  was  suing  in  representa- 

2  Monroe  v.  Dredging  Co.,  84  Cal.  tive  capacity.  Quinn  v.  Newport 
515 ;  s.  c,  18  Am.  St.  Rep.  248.  News   Co.,  22  S.  W.  Rep.  223  (Ky., 

3  Sheldon  v.  Hoy,  11   How.  Pr.  11.  1893). 

The  time  and  mode  of  appointment        *  Mitchell  v.  Albright,  20  W.  L.  B. 

should  be  given  so  as  to  enable  the  101 ;  Slagle  v.  Entrekin,  44  O.  S.  637. 
adverse  party  to  take  issue  thereon.        5Gutridge  v.  Vanatta,  27  O.  S.  366. 
Dayton  v.  Connah,  18  How.  Pr.  320.        6  state  v.  Green,  65  Mo.  528. 
An  allegation  that  the  intestate  died,        '  Beers  v.  Shannon,  73  N.  Y.  292. 


§§  546-548.]       EXECUTORS  and  administrators.  497 

relied  upon  to  show  that  the  averment  is  not  true.^  The 
proper  method  of  reaching  a  defect  in  an  allegation  of  repre- 
sentative capacity  is  by  motion.' 

Sec.  546.  Averment  of  appointment  of  executor. — 

Plaintiff  says  that  J.  K.  died  on  the day  of ,  18 — , 

leaving  a  last  will  and   testament,  which  said  will  was  duly 

filed  and  admitted   to  probate  by  the  probate  court  of  • 

county,  Ohio,  on  the day  of ,  18 — . 

That  said  will  named  plaintiff  as  the  executor  thereof,  and 

that  he  was  appointed  by  the  said  court  on  the  day  of 

,  18 — ,  as  executor  of  the  said  last  will  and  testament  of 

the  said  J,  K.,  deceased,  and  is  now  the  duly  qualified  and 
acting  executor  of  the  said  will  of  said  J.  K.,  deceased,  and 
brings  this  suit  as  such  executor. 

Note.—  Modeled  from  Kirsch  v.  Derby,  96  Cal.  602. 

Sec.  547.  Form  of  allegation  of  appointment  of  .adminis- 
trator.— 

Where  plaintiff: 

Plaintiff  states  that  on  the day  of ,  18 — ,  C.  D.,  late 

of  the  county  of and  state  of  Ohio,  died  intestate;  that 

on  the ■  day  of  • ,  18 — ,  this  plaintiff  was  appointed  by 

the  probate  court  of  said  county  as  administrator  of  the  estate 
of  the  said  C.  D.,  deceased,  and  is  now  the  duly  qualified  and 
acting  administrator  of  such  estate,  and  brings  this  action  as 
such  administrator. 

Where  defendant: 

That  on  the day  of ,  18 — ,  C.  D.,  late  of  the  county 

of ■■,  state  of  Ohio,  died  intestate:  that  on  the day  of 

,  18 — .  the  defendant  E.  F.  was  by  the  probate  court  of 

said  county  duly  appointed  administrator  of  the  estate  of  the 
said  C.  D.,  deceased,  and  is  now  the  didy  qualified  and  acting 
administrator  of  such  estate,  and  this  action  is  brought  against 
him  as  such  administrator. 

Sec.  548.  Statutory  actions  by  executor  or  administra- 
tor.—  The  statutes  authorize  an  executor  or  administrator  to 
maintain  an  action  upon  a  contract  made  by  his  decedent 
without  joining  with  him  the  person  for  whose  benefit  it  is 
prosecuted ;  ^  or  an  action  against  a  former  executor  or  ad- 

1  Mayes  v.  Turley,  60  Iowa,  407  ;  23  Barb.  591 :  Neil  v.  Cheney,  1  W.  L. 
Ewen   V.  Railway  Co.,  38  Wis.  614.     M.  15.1 

Contra.  Gilniore  v.  Morris,  18   Mo.  3  r.  g..  sec.  4995.     See  ante,  sec.  9. 

App.  114.  The    holder    of  a  note    payable   to 

2  Jewett  V.  Fairchild,  4  Denio,  83 ;  bearer  may  be  sued  by  an  adminis- 
13  How.  Pr.  413;  Bangs  v.  Mcintosh,  trator  in  his  own  name,  although  it 

32 


498  EXEOUTOKS   AND    ADMINISTRATORS.  [§  549. 

ministrator,^  though  this  does  not  authorize  an  administrator 
de  bonis  non  to  sue  the  administrator  of  his  predecessor,  who 
died  in  office ;  -  or  an  action  for  the  sale  of  real  estate  to  pay 
debts  either  in  the  probate  or  common  pleas  court;'  or  an 
action  against  another  for  wrongfully  causing  the  death  of 
the  decedent ;  *  or  a  civil  action  against  creditors,  legatees, 
distributees  or  other  parties,  to  determine  questions  with  re- 
spect to  the  administration  of  a  trust  imposed;'  or  an  action 
against  a  former  executor  or  administrator  upon  his  bond  for 
any  maladministration  of  such  administrator  or  executor ;  ^  or 
an  action  for  the  foreclosure  of  a  mortgage  made  to  his  dece- 
dent." A  foreign  executor  or  administrator  is  authorized  to 
prosecute  an  action  in  the  state  in  the  same  manner  as  a  non- 
resident is  permitted  to  sue.* 

Sec.  549.  Action  by  executor  or  administrator  to  com- 
plete contract. —  If  an  executor  or  administrator  so  desires, 
he  may  file  a  petition  in  the  court  of  common  pleas  of  the 
county  in  which  the  land  is  situate,  for  the  completion  of  any 
contract  entered  into  by  a  decedent  for  the  sale  or  convey- 
ance of  an  interest  in  land,  which  has  not  been  completed  be- 
fore the  death  of  such  decedent.**  An  executor  may  carry  out 
a  contract  made  by  his  testator,  in  a  lease  which  had  not 
expired  at  his  death,  to  pay  for  certain  buildings  which  the 
tenant  was  allowed  to  erect,  by  allowing  the  necessary  sum 
to  cover  the  value  of  such  building  and  any  damages  that  may 
accrue  to  the  tenant.^"  The  specific  performance  of  a  contract 
made  by  an  intestate  for  the  erection  of  a  dwelling-house, 

belongs  to  the  estate  of  which  he  is  zard   v.  Filler,  20  O.  479 ;  Curtis  v. 

administrator.     Holcomb  v.   Beach,  Lynch,  19  O.  S.  392-399. 

112   Mass.  450.     Possession   of  such  SR.  S.,  sees.  6137,  6136,  6141. 

note  is  evidence  of   title.     Pettee  v.  ■*  R  S.,  sec.  6134 ;  Weidner  x.  Ran- 

Prout,   3    Gray,   502.     An    executor  kin,  26  O.  S.  522.     See    chapter  63, 

may  sue  either  in  his  own  name  or  Negligence  Causing  Death. 

as  executor,  upon  a  note  given  him  ^  R.  S.,  sec.  6202.     See   chapter  92. 

as  executor,  for  a  debt  due  the  testa-  on  Wills. 

tor  at  the  time  of  his  decease.     Mer-  <>  R  S.,  sees.  6020,  6051.     See  chap- 

ritt  V.  Seaman,  6  N.  Y.  168.  ter  23,  on  Bonds ;  R  S.,  sec.  6214. 

1  R  S.,  sees.  6020,  6214 ;  ante,  sees.  •  R  S.,  sees.  6070-72. 
354,  358.  8  R  S.,  sec.  6133. 

2  Herckelrath  v.  Van  Nes.  31  W.  L.  s*  r,  s.,  sec.  5800. 

B.  35  (C.  a  C.  R.,  1893),  citing  Bliz-       h)  Jackson   v.  O'Brannin,  14  O,   & 

177. 


§  550.]  EXECUTORS    AND    ADMINISTRATORS.  499 

which  was  not  intended  as  an  improvement  of  the  realty  as 
an  investment,  cannot  be  enforced  against  the  executor  in 
favor  of  the  heirs.^  The  personal  representative  may  rescind 
or  perform  any  personal  contract  of  the  decedent  as  the  best 
interest  of  the  estate  may  seem  to  demand,  subject  to  the 
approval  of  the  court.^  An  independent  contract  made  by  an 
executor  to  sell  his  decedent's  real  estate  to  the  purchaser  at 
a  price  less  than  that  agreed  upon  by  the  testator,  under  a 
power  of  sale  granted  him  by  the  will,  cannot  be  enforced 
against  the  executor  although  he  might  be  wholly  responsible 
in  damages.' 

Sec.  550.  Action  to  set  aside  fraudulent  sale  of  real 
estate  and  to  sell  same  to  pay  debts. —  Where  land  has  been 
fraudulently  sold  by  the  decedent  during  his  life-time,  an 
executor  or  administrator  may,  if  it  becomes  necessary  to  sell 
the  same  to  pay  debts,  bring  an  action  for  the  recovery  of  the 
possession  thereof,  and  to  have  the  same  set  aside  on  the 
ground  of  fraud,  and  sold  for  the  payment  of  debts  due  from 
the  decedent.^  As  in  other  cases,  the  petition  must  set  forth 
the  amount  of  debts,  charges  of  administration,  and  the  value 
of  the  personal  estate.^  All  persons  who  hold  or  claim  to 
hold  any  interest  under  and  by  virtue  of  such  fraudulent  con- 
veyance should  be  made  parties  to  the  action.^  An  action 
cannot  be  maintained  by  an  administrator  against  his  dece- 
dent's grantee  in  possession  to  recover  the  value  of  real  estate 
held  by  the  latter  for  the  payment  of  debts,  upon  the  ground 
that  the  decedent  conveyed  it  during  his  life-time  in  fraud  of 
creditors.  The  proper  remedy  in  such  cases  is  to  bring  a  civil 
action  under  the  code  to  set  aside  the  fraudulent  conveyance 
and  subject  the  land  to  sale  for  payment  of  debts.^ 

I  Gray  v.  Hawkins,  8  O.  S.  449.  administrator  unless  it  becomes  nec- 

'^  Id.     See  Howard  v.  Babcock,  7  O.  essary  to  sell  the  same  for  the  pay- 

(PL  3),  73.  ment  of  debts.  Benjamin  v.  La  Bar- 
s'Pollock  v.  Pine,  2  O.  C.  C.  359.  ron,  15  O.  518,  in  which  it  was 
*  R.  S.,  sees.  6139,  6140 ;  Spoors  v.  intimated  that  equity  would  relieve 

Coen,  44  O.  S.  497 ;  McCall  v.  Pixley,  where  it  was  necessary  to  sell  land 

48  O.  S.  387 ;  25  W.  L.  B.  417.     The  to    pay    debts.      McCall    v.    Pixley, 

power  of  an  administrator  over  the  supra, 

real  estate  of  his  decedent  being  de-  ^R.  S.,  sec.  6141. 

rived  entirely  from  statute,  it  ueces-  ^R  S.,  sec.  6142. 

sarily  follows  that  a  fraudulent  con-  "  Doney  v.  Dunnick,  8  0.  C.  C.  163. 

voyance  cannot  be  impeached  by  an 


500  EXECUTORS    AND    ADMINISTRATORS.  [§  551. 

Sec.  551.   Petition  to  set  aside  fraudulent  conveyance 
and  for  sale. — 

\_Aver?ne?it  of  apjyointment  as  in  ante,  sec.  5Jf7.'] 
That  valid  debts  of  said  decedent  amounting  to dol- 
lars or  more  were  presented  to  the  said  plaintiff  as  adminis- 
trator of  the  estate  of  said  A,  B.,  deceased,  which  said  claims 
were  allowed  by  him  as  valid  claims  against  the  estate  of  said 
decedent.  That  the  total  value  of  the  personal  estate  and 
effects  of  the  said  decedent  amounted  to  the  sum  of dol- 
lars, which  was  wholly  insufficient  to  pay  the  debts  and  costs 
of  administration. 

Plaintiff  further  represents  that  the  said  A.  B.  died  seized 
as  owner,  and  in  possession,  of  the  following  described  real 

estate,  situate  in  the  county  of and  state  of  Ohio,  to  wit : 

[^Desc7'ij)t{o7i  of  proj}erty.'] 

That  on  the  day  of ,  IS—,  the  said  A.  B.,  then  in 

full  life,  conveyed  said  premises  to  F.  G.  by  deed  purporting 

to  convey  the  same  in  fee  and  to  be  in  consideration  of  

dollars  paid  by  the  said  F.  G. ;  but  this  plaintiff  avers  that 
said  deed  was  m  fact  executed  without  any  consideration  and 
none  whatever  was  paid. 

That  the  said  decedent,  at  the  time  of  executing  said  deed 
of  conveyance,  was  largely  in  debt  to  divers  persons,  to  wit: 
[_]S^a)ne  them.] 

That  the  said  A.  B.,  fearing  that  his  said  indebtedness  was 
and  would  be  more  than  he  could  pay,  and  that  all  his  prop- 
erty would  be  insufficient  to  pay  the 'same,  and  to  hinder  and 
delay  his  then  and  any  subsequent  creditors  that  he  might 
have,  and  for  the  sole 'purpose  of  avoiding  payment  of  his 
said  debts,  did  execute  and  deliver  the  said  deed  to  the  said 
A.  G.,  thereby  conveying  the  said  premises  hereinbefore  de- 
scribed; that'the  said  purchaser,  F.  G.,  then  and  afterwards 
had  knowledge  and  notice  of  the  intention  and  purpose  of  the 
said  A.  B.  in  making  said  conveyance,  and  that  said  purchaser 
received  and  accepted  the  same  upon  agreement  and  under- 
standing between  himself  and  the  said  A.  B.,  deceased,  that 
the  said  F.  G.  would  sell  said  premises  and  the  title  to  the 
same  so  conveyed  to  him  and  their  proceeds  in  trust  for  the 
sole  use  and  benefit  of  the  said  A.  B.,  deceased,  his  heirs  and 
assigns,  and  that  he  would  reconvey  the  same  to  him  upon 
request. 

The  plaintiff  further  says  that  the  fraud  of  the  said  A.  B., 
deceased,  in  so  executing  said  deed  and  conveying  said  prem- 
ises to  the  said  F.  G.  as  aforesaid,  was  not  discovered  by 
plaintiff  or  by  his  creditors  aforesaid  until  after  his  death  and 
within  the  four  years  last  past.^ 

Plaintiff  further  says  that  it  is  necessary  to  sell  the  prem- 

1  See  sec.  607,  post. 


I 


§  552.]  EXECUTORS   AND    ADMINISTRATORS.  501 

ises  hereinbefore  described  to  pay  the  debts  of  the  said  A.  B., 
deceased. 

Wherefore  plaintiff  prays  that  the  said  conveyance  from  the 
said  A.  B,,  deceased,  to  the  said  F.  G.,  may  be  declared  null 
and  void,  and  that  the  same  may  be  sold,  the  proceeds  thereof 
subjected  to  the  payment  of  the  debts  of  said  decedent  and 
costs  of  the  administration,  and  that  the  said  proceeds  may 
be  brought  into  court  for  distribution,  and  for  all  other  and 
further  proper  use  and  relief  in  the  premises. 

Note.—  From  McCall  v.  Pixley,  48  O.  S.  387. 

Sec.  552.  Actions  against  executor  or  administrator  in- 
dividually.—  AVhere  an  action  has  been  broufjht  against  sur- 
viving  executors  jointly  in  their  respective  capacity  on  a  claim 
asserted  against  them  in  which  they  have  no  right  of  recovery, 
the  plaintiff  cannot  treat  the  same  as  an  action  brought  against 
them  individually,  and  be  allowed  to  amend  the  petition  for 
that  purpose.'  Nor  has  an  executor  or  administrator,  in  the 
absence  of  autliority  granted  by  will,  the  right  to  take  possession 
of  the  decedent's  leasehold  property ;  and  if  he  does  so,  and 
receives  the  rents  and  profits  therefrom,  he  becomes  person- 
ally liable  therefor  to  the  lessor,  who  may  elect  to  hold  the  es- 
tate or  the  personal  representative  personally.-  But  in  certain 
cases  it  is  said  that  he  may  be  properly  charged  in  his  account 
with  the  rents  which  he  has  collected  from  the  real  estate  of  the 
decedent."  An  administrator  who  has  knowledge  of  a  valid 
claim  against  an  estate,  and  who  has  funds  in  his  hands  with 
which  to  pay  the  same,  becomes  personally  liable  therefor  if 
he  pays  out  the  funds  in  his  hands  without  regard  to  prefer- 
ence.^ Where  an  administrator  is  sued  individually  by  credit- 
ors, and  appears  and  answer  to  the  action  in  his  individual 
capacity,  he  cannot  after  verdict  ask  for  a  new  trial  in  order 
that  he  may  be  allowed  to  make  a  defense  in  his  representa- 
tive capacity.*  An  executor  may,  by  virtue  of  power  of  sale 
under  a  will,  make  a  contract  with  a  purchaser  for  a  sale  of 
land  at  less  than  purchase  price  fixed  by  the  testator,  and  may 
be  held  personally  responsible  to  an  injured  party  in  damages ; " 

1  Fleischman  v.  Shoemaker,  3  O.  C.        3  Campbell  v.  McCormick,  1  O.  C. 
C.  152.  C.  504. 

2  Becker  v.   Wallworth,  45  O.   S.        *  In  re  Wakefield,  Goebel,  5. 

169.  STen  Eick  V.  Dye,  14  W.  L.  B.  214. 

« Pollock  V.  Pine,  2  O.  C.  C.  359. 


502    ■  B-XEOUTORS    AND    ADMtNISTEA.T0E8,  [§  653. 

and  actions  upon  an  oral  contract  to  convey  land,  for  the  re- 
covery of  compensation  in  lieu  of  specific  performance,  should 
be  brought  against  the  real  and  not  the  personal  representa- 
tive.' A  suit  cannot  be  maintained  against  an  executor  indi- 
vidually upon  a  contract  made  upon  a  consideration  that  the 
executor  would  resign,  as  such  a  contract  is  void.'  An  action 
cannot  be  maintained  against  an  administrator  or  executor 
for  the  recovery  of  attorney  fees  if  based  upon  a  contract. 
Such  expenses  are  usually  allowed,  upon  the  principle  that  an 
executor  may  use  the  funds  of  an  estate  for  purposes  author- 
ized by  law;  but  an  executor  or  administrator  has  no  power  to 
make  such  a  contract  upon  a  new  consideration,  unless  author- 
ized by  law  so  to  do,  and  cannot  bind  the  estate  for  payment 
of  fees  so  incurred.  A  contract  so  made  is  regarded  as  per- 
sonal to  the  executor  or  administrator.^ 

Sec.  553.  Actions  on  rejected  claims. —  If  a  claim  is  pre- 
sented to  an  administrator  before  the  estate  is  declared  insolv- 
ent, and  is  rejected  by  him,  the  claimant  must  bring  suit 
thereon  within  six  months  from  such  rejection  if  the  debt  be 
then  due,  or  within  six  months  after  some  part  thereof  shall 
have  become  due.*  And  if  the  claim  has  been  rejected  by  an 
administrator  or  executor  upon  the  written  request  of  an  heir 
or  creditor  by  the  proper  proceedings,  the  owner  of  such 
claim  must  bring  suit  thereon  against  the  administrator  or 
executor  within  six  months  after  such  rejection.^  Yerbal  no- 
tice by  the  widow  to  the  administrator  not  to  allow  a  claim 
is  not  sufficient.^  An  administrator  may  require  claims  to  be 
verified.'  A  formal  presentation  is  waived  where  an  admin- 
istrator has  seen  and  examined  a  claim  and  refused  to  allow 
it.'  Where  a  bond  has  been  given  by  an  heir  or  creditor  in 
accordance  with  the  provision  of  the  statute,*  the  persons 

»Crablll  V.   Marsh,   38  O.  S.  831;  Bullard,  5  Gray,  404;  Taylor  v.  My- 

Howard  V.  Brower,  37  O.  S.  403.  gat,  26  Conn.  184. 

2  Withers  v.  Ewing,  40  O.  S.  400.  *  R.  S..  sec.  6097. 

3  McBride  v.  Brucker.  5  O.  C.  C.  12 ;  ^  R.  S.,  sec.  6098. 

Austin  V.  Munro,  47  N.  Y.  364;  Lucht        6  Thomas  v.  Chamberlain,  39  O.  S. 

V.  Behrens,  28  O.  S.  231 ;  Kittredge  v.  112. 

Miller,   19  W.  K   B.   119;  Lovell  v.        7  R.  s.,  sec.  6092. 

Field,  5  Vt.  221 ;  Fitzhugh  v.  Fitz-        8  Kyle  v.  Kyle,  15  O.  S.  15. 

hugh,   11  Gratt   300 ;    Luscomb    v.        9  R  S.,  sec.  6098. 


§  553.]  EXECUTORS   AND    ADMINISTRATORS.  603 

giving  the  same  should  be  made  parties  to  an  action  on  the 
rejected  claim,  that  they  may  be  allowed  to  set  up  any  de- 
fense they  may  have  thereto.^  In  suits  against  an  adminis- 
trator or  executor  upon  a  rejected  claim  the  petition  must 
show  a  compliance  with  the  various  provisions  of  the  statutes. 
All  technical  objections  as  to  informality  in  an  affidavit  ac- 
companying a  claim  are  waived,  however,  by  the  indorsement 
of  the  disallowance  thereon.^  It  is  essential  to  prove  pres- 
entation and  rejection  of  a  claim,  or  to  show  some  other 
reason  why  the  administrator  is  liable  to  be  sued  thereon,* 
though  a  formal  rejection  is  not  a  prerequisite  to  the  right 
to  maintain  such  suit.*  It  will  be  considered  rejected  if  the 
executor  informs  the  creditor  to  so  consider  it,  even  though  no 
formal  indorsement  of  the  disallowance  is  made  thereon,  and 
in  such  case  suit  must  be  brought  within  six  months.'  In  an 
action  on  a  rejected  claim  it  is  not  necessary  to  aver  and 
prove  that  at  the  time  the  claim  was  rejected  a  specific  de- 
mand for  the  indorsement  of  the  disallowance  thereon  was 
made;^  and  a  holder  of  a  claim  having  presented  the  same  to 
the  administrator,  and  given  ample  time  to  examine  and  allow 
it,  may  bring  an  action  thereon  even  though  no  disallowance 
has  been  indorsed  thereon  and  no  demand  has  been  made  for 
such  disallowance."  If  suit  be  brought  within  six  months 
after  its  rejection,  and  a  judgment  thereon  is  reversed  after 
the  expiration  of  the  six  months,  the  plaintiff  is  nonsuited.^ 
No  suit  can  be  maintained  against  an  administrator  or  exec- 
utor until  after  the  expiration  of  eighteen  months  from  the 
date  of  his  bond  unless  it  be  a  claim  which  would  not  be  af- 
fected by  the  insolvency  of  the  estate,  or  unless  it  be  brought 
after  the  estate  has  been  represented  insolvent,  or  unless  the 
same  has  been  exhibited  to  the  executor  or  administrator  and 
been  rejected  by  him.' 

»  Fuller  ton  v.  Davis,  1  O.  C.  C.  572.     Treasurer  v.  Walker,  23  W.    L.   B- 

2  Morgan  v.  Bartlette,   3  O.  C.  C.     106. 

431.  ^  Treasurer  v.  Walker,  22  W.  L.  B. 

3  Yager  v.  Greiss,  1  O.  C.  C.  531.  106:  Kyle  v.  Kyle,  15  O.  S.  15. 
•Treasurer  v.  Walker,  22  W.  L.  B.        « Haymaker  v.  Haymaker,  4  0.  S. 

106.  272. 

5  Barter  v.  Taggart,  14  O.  S.  122.  »  R  S.,  sec.  610a 

t*  Stambaugh  v.  Smith,  23  0.  S.  584 ; 


504  EXKCCTORS    AND    ADMINISTRATORS.  [§§  554-556. 

Sec.  554.  Petition  against  execntor  or  administrator  on 
rejected  claim. — 

[Caption  and  averment  of  appointment  as  in  ante^  sees.  5^6-7.'] 

There  is  due  plaintiff  from  the  defendant  as  executor  [cr, 

administrator]  the  sum  of dollars   upon  an  account  of 

which  the  following  is  a  copy  with  all  the  credits  and  indorse- 
ments thereon  [or  attached,  as  in  ante,  sees:  57-8,  lo.\] 

Plaintiff  further  states  that  he  presented  to  the  defendant, 
D.  H.  M.,  as  executor  of  the  estate  of  E.  D..  deceased,  a 
written  statement  of  his  said  claim,  and  demanded  the  in- 
dorsement of  allowance  thereon,  but  that  said  defendant  on 

the day  of  ,  18 — ,  refused  and  rejected  said  claim, 

and  refused  to  indorse  his  said  allowance  thereon. 

Plaintiff  further  asks  that  he  may  recover  judgment  against 

the  said  defendant  for  the  said  sum  of dollars  with  inter- 

est  from . 

Sec.  555.  Petition  on  unpaid  claim  allowed.— 

[Caption.  Averment  of  appointment  as  in  ante,  sees.  oJf6-7. 
State  cause  of  action,  as  in  ante,  sec.  SoJi..'] 

Plaintiff  further  says  that  he  presented  to  the  defendant 
A.  B.,  as  executor  of  the  estate  of  E.  I).,  deceased,  a  copy  of 
his  said  claim,  duly  authenticated  according  to  law,  which 
said  claim  was  allowed  by  the  said  defendant  as  shown  by  his 
indorsement  thereon  as' follows:  [Copy  of  indorsement  of 
alloivance.'] 

That  more  than  eighteen  months  have  expired  from  the 
date  of  the  bond  of  the  said  defendant  as  administrator,  but 
that  said  defendant  has  wholly  failed,  refused  and  neglected 
to  pay  said  plaintiff's  claim  or  any  part  thereof. 

Plaintiff"  therefore  prays  judgment  against  said  defendant 
for  the  sum  of dollars  with  interest  from . 

Sec.  556.  Defenses  to  actions  on  claims.—  An  administra- 
tor or  executor  to  avail  himself  of  the  defense  to  an  action 
upon  a  rejected  claim,  that  it  was  not  presented  within  the 
prescribed  time,  must  plead  that  fact,  setting  forth  all  facts 
showing  due  notice  and  publication  of  his  appointment.' 
Where  a  claim  has  been  presented  twice  upon  the  theory  that 
the  first  presentment  was  not  properly  made,  the  limitation 
for  bringing  suit  begins  to  run  from  the  date  of  the  first  pre- 
sentment.- The  limitation  of  six  months  in  which  rejected 
claims  must  be  sued  is  penal  in  its  nature  and  must,  therefore, 
be  strictly  construed.  A  party  seeking  to  avail  himself  of 
this  provision  as  a  defense  must  bring  himself  strictly  within 

iRyan  v.  Flanagan,  38  N.  J.  L.  161.        -'Gillespie  v.  Wright,  93  CaL  169, 


1 


§  557.]  EXECUTORS    AND    ADMINISTRATORS.  505 

its  terras.^  If  a  claim  is  past  due  when  rejected,  it  will  be- 
come barred  unless  suit  is  brought  thereon  within  six  months.* 
Where  an  administrator  joins  issue  and  goes  to  trial  on  a 
claim,  he  cannot  be  heard  afterwards  to  object  that  the  same 
was  not  presented  for  allowance  before  the  action  was 
brought,  as  such  objection  would  be  waived.^  A  judgment 
cannot  be  rendered  upon  a  claim  disallowed  more  than  six 
months  before  the  action  thereon  is  commenced,  and  a  failure 
on  the  part  of  an  executor  to  plead  the  statute  limiting  the 
time  does  not  give  the  court  a  right  to  render  judgment 
thereon.^  If  suit  is  brought  by  a  creditor  upon  a  claim  which 
has  been  allowed,  and  the  estate  is  solvent,  the  provision 
limiting  actions  against  the  administrator  until  after  the  ex- 
piration of  the  eighteen  months '  has  no  application,  as  such 
creditor  is  entitled  to  payment  within  the  eighteen  months.^ 
A  petition  on  a  claim  falling  within  the  eighteen  months' 
limitation  which  fails  to  allege  that  the  eighteen  months  have 
elapsed  is  bad  upon  demurrer.'  Nor  can  a  suit  be  brought 
against  a  decedent's  estate  within  eighteen  months  after  let- 
ters of  administration  have  been  issued,  unless  the  claim  has 
been  first  presented.^  Where  an  executor  is  relieved  from  giving 
bond,  a  suit  on  a  claim  against  the  estate  can  only  be  brought 
within  four  years  from  the  date  of  the  appointment  if  the 
proper  notice  of  such  appointment  has  been  given. ^  An  ac- 
tion may  be  maintained  on  a  rejected  claim  after  the  expira- 
tion of  eighteen  months  from  the  date  of  the  bond  and  such 
further  time  as  may  be  granted  by  the  court  for  the  collection 
of  the  assets."' 

See.  557.  Actions  to  set  aside  erroneous  or  fraudulent 
settlements.—  The  heirs  or  distributees  may  maintain  an 
action   against  an  administrator  or  executor  to  set  aside  a 

'Keenan  v,  Saxton,  3  O.  41 ;  Har-  *  Greer  v.  State,   2  O.  S.  574;  Levi 

ter  V.  Taggart,  14  O.  S.  122;  Kyle  v.  v.   Buchannan,    2  C.    S.    C.   R   144; 

Kyle,   15   O.    S.    15;    Stambaugh   v.  Rhodes  v.  Doggett,  3  W.  L.  M.  134. 

Smith,  23  O.  S.  584 ;  Thomas  v.  Cham-  '  Rhodes  v.  Doggett,  3  W.  K  AL  134 : 

berlain,  39  O.  S.    116;    Reynolds   v.  Levi  v.  Buchannan,  2  C.  S.  C.  R  144 ; 

Collins,  3  Hill,  36.  Hammerle  v.  Kramer,  12  O.  S.  252. 

^McKent  v.  Kent,  2  W.  L.  M.  540.  ^Keenan  v.  Saxton,  13  O.  41. 

"Pepper  v.  Ridweli,  36  O.  S.  454.  ^  Delaplane  v.  Smith,  38  O.  S.  413. 

•1  Pollock  V.  Pollock,  2  O.  C.  C.  140 ;  »'  Thomas  v.  Chamberlain,  39  O.  & 

Brown  v.  Anderson,  13  Mass.  203.  112. 

5R  S.,  sec.  6108 


506  EXECUTORS   AND   ADMINISTRATORS.  [§  558. 

fraudulent  settlement  made  by  him  with  the  probate  court, 
and  to  compel  an  accounting  to  be  made  by  such  administra- 
tor.* There  being  no  liability  upon  the  part  of  the  sureties 
of  an  administrator  to  account  to  the  heirs,  this  action  cannot 
therefore  be  sustained  against  the  administrator  and  his  sure- 
ties jointly  .2 

In  framing  a  petition  to  set  aside  a  fraudulent  settlement, 
after  alleging  the  representative  capacity  of  the  defendant,  it 
may  be  stated  that : 

Plaintiff  states  that  he  is  an  heir-at-law  of  the  said  C.  D., 
deceased,  and  as  such  heir  entitled  to  a  distributive  share  of 
the  estate  of  the' said  C.  D.,  deceased.  That  the  defendant, 
-as  administrator  of  the  estate  of  the  said  C.  D.,  deceased,  did 

on  the day  of ,  18 — ,  file  in   the  probate  court  of 

county,  Ohio,  his  final  account,  which  said  account  was 

on  the day  of ,  18—,  duly  examined  and  allowed  by 

said  court,  and  a  balance  of  $ found  in  the  hands  of  said 

defendant,  as  said  administrator,  which  he  was  ordered  to 
pay  over  and  distribute  according  to  law. 

Plaintiff  states  that  said  defendant  erroneously  \or,  fraud- 
ulently] credited  himself  in  his  said  account  with  the  follow- 
ing items  as  having  been  paid  out  by  him,  which,  in  fact, 
were  not  so  paid  by  him  {narne  items  and  any  other  matters]. 

Plaintiff  therefore  prays  that  said  account  may  be  set  aside 
and  held  for  naught,  and  that  the  court  will  take  an  account 
of  the  transactions  of  said  defendant  as  such  administrator, 
and  that  he  be  ordered  to  pay  any  balance  remaining  in  his 
hands  as  such  administrator  into  court  for  further  orders. 

Sec.  558.  Action  for  recovery  of  distributive  share. —  A 

legatee,  widow  or  distributee,  after  an  order  of  distribution 
has  been  made,  may  prosecute  an  action  upon  the  bond  of  an 
executor  or  administrator  for  the  recovery  of  their  share  of 
the  estate.'  Such  an  action  may  be  based  either  upon  the 
bond  or  regarded  as  a  mere  pergonal  liability  secured  thereby. 
In  the  latter  case  it  will  be  barred  within  six  years  after 
the  expiration  of  thirty  days  from  the  date  of  the  order 
of  distribution;*  and  legatees  may  maintain  this  suit  without 
first  having  the  probate  court  fix  the  amount  of  the  legacy  or 
order  its  payment.*  This  action  may  be  maintained  by  a  dis- 
tributee who  has  not  received  his  proportionate  share,  not- 

1  Reed  v.  Reed,  25  O.  S.  423.  <  Lease  v.  Dowuey,  5  O.  a  C.  480. 

2  Cadwallader  v.  Longley,  1  Disn.  As  shown  in  a  preceding  section, 
497.     See  ch.  28,  Bonds,  sec.  354.  mite,  sec.  559,  and  note  to  form. 

»  R.  S.,sec.  6211.    See  ch.  23,  sec.  354.        »  Mighton  v.  Dawson,  38  O.  S.  650. 


§  559.]         EXECUTOES  AND  ADMINI3TEATOE3.  50T 

withstanding  ttie  fact  that  the  remainder  of  the  distributees 
have  received  their  share/  Distributees  of  the  personal  es- 
tate cannot  join  in  an  action  against  an  administrator  for  the 
recovery  of  their  distributive  share.'  And  an  administrator 
or  executor  cannot  retain  out  of  the  share  of  a  distributee 
any  portion  of  his  share  in  payment  of  a  debt  due  by  him 
to  the  estate  which  was  barred  during  the  life-time  of  the 
decedent.'  Before  the  adoption  of  the  code  suits  for  the  re- 
covery of  a  legacy  or  distributive  shares  of  an  estate  were 
concurrently  within  the  jurisdiction  of  courts  at  law  and 
chancery  and  not  subject  to  the  statute  of  limitations,  but  it 
is  otherwise  under  the  code.* 

Sec.  559.  Petition  for  recovery  of  distributive  share. — 

[Averment  of  representative  capacity  as  in  ante,  sec.  5^7.1 

After  the  defendant  entered  into  the  discharge  of  his  duties 
as  such  administrator  there  came  into  his  hands  a  large 
amount  of  assets  belonging  to  said  estate  to  be  by  him  ad- 
ministered  according  to  law,  and  on  -the  day  of , 

18 — ,  said  defendant  filed  in  the  probate  court  of county 

his  final  account  as  such  administrator.     Thereafter,  on  the 

day  of  ,  18 — ,  by  the  consideration  of  said  probate 

court,  said  account  was  duly  examined,  allowed  and  settled, 
and  said  court  found  that  there  remained  in  the  hands  of  said 
defendant  as  such  administrator  for  distribution  a  balance  of 

dollars,  which  said  balance  said  administrator  was,  on 

said day  of ,  18 — ,  by  the  consideration  of  said  court, 

adjudged  to  pay  over  and  distribute  acccording  to  law. 

The  plaintiff  is  one  of  the  heirs  at  law  \or,  widow]  of  the 
said  J.  B.,  deceased,  and  as  such  heir  entitled  to  receive  out  of 
said  balance,  so  as  aforesaid  adjudged  to  be  distributed  accord- 
ing to  law,  the  sum  of dollars. 

Plaintiff  has  demanded  of  said  defendant  as  such  adminis- 
trator payment  of  the  said  sum  of dollars,  his  distributive 

share  of  said  estate,  but  defendant  has  wholly  failed,  refused 
and  neglected  to  pay  the  same. 

Plaintiff  therefore  prays  judgment  against  the  said  defend- 
ant for  the  sum  of dollars,  with  interest  thereon  from 

the  said day  of ,  18 — ,  being  the  day  when  said  money 

became  due  to  plaintiff,  and  to  such  further  relief  as  he  may 
be  entitled. 

Note.— R  S.,  sees.  6195-6199;  Lease  v.  Downey,  5  O.  C.  C.  480. 

1  Negley  v.  Guard,  20  O.  310.  Garrett  v.  Pierson,  29  la.  804.    The 

sWaldsmith  V.  Waldsuiith,  2  0. 156.  following  cases  sustain  the   text:  2 

3  Harrod  v.  Carder,  3  O.  C.  C.  479.  Pearson,  473 ;  Drysdale  Case,  14  Pa.  St. 

The  contrary  doctrine  is  held  in  Eng-  531 ;  Reed  v.  Marshall,  90  P;i.  St.  855. 

land.    Williams  on  Executors,  sea  *  Webster  v.  Bible  Society,  29  W. 

1304;  In  re  Boggart,  28  Hun,  466;  L.  B.  141. 


CHAPTER  36. 


FALSE  IMPRISONMENT. 


Sec.  560.  Nature    of     the    action  — 
Pleading. 

561.  Action  against  an  individ- 

ual making  complaint 

562.  Action   against  magistx'ate 

and  judicial  officers. 

563.  Action  against  other  officer. 

564.  Actions  against  carrier  of 

passengers. 


Sec.  565.  Averment  of  damages. 

566.  Petition   for    damages  for 

false  imprisonment. 

567.  Defenses  to  actions  for  false 

imprisonment 

568.  Answer  of  justification  un- 

der process. 

569.  Answer  by  individual 


Sec.  560.  Nature  of  the  action  —  Pleading. —  The  action 
for  false  imprisonment  is  the  coramon-law  action  for  trespass, 
and  consists  in  the  unlawful  restraint  of  a  person  without  his 
consent,  either  with  or  without  process.  In  Ohio  it  must  be 
brought  within  one  year  from  the  time  it  occurs.^  It  is 
distinguished  from  mahcious  prosecution  in  that  in  the  lat- 
ter there  must  be  malice  and  want  of  probable  cause  for  an 
arrest  and  imprisonment,  while  in  the  former  the  process 
or  order  by  which  the  real  imprisonment  is  effected  must  be 
absolutely  void.^  Although  malice  is  not  an  essential  ingredi- 
ent of  the  action,  yet  it  may  be  taken  into  consideration  upon 
the  question  of  damages.^  Where  the  allegation  of  a  petition 
makes  it  an  action  for  malicious  prosecution,  an  amendment 
may  be  permitted  by  striking  out  the  words  "  want  of  prob- 
able cause,"  and  averring  that  the  arrest  was  illegally  made, 
and  with  force,  thus  changing  it  into  an  action  for  false  im- 
prisonment.*    To  constitute  false  imprisonment  it  is  not  es- 


1  O.  Code,  sec.  4983. 

2  Spice  V.  Steinruck,  14  O.  S.  213 ; 
Seeger  v.  Pfeitfer,  35  Ind.  13 ;  Boaz  v. 
Tate,  43  Ind.  60;  Colter  v.  Lower,  35 
Ind.  285 ;  Carey  v.  Sheets,  60  Ind.  17 ; 
Diehl  V.  Friester,  37  O.  S.  473.  Tlie 
words  •'  without  reasonable  or  prob- 
able cause  "  may  be  rejected  as  sur- 
plusage.    Johnson  v.  Von  Kettler,  84 


111.  315;  Woodall  v.  McMillan,  38 
Ala.  622. 

3  Johnson  v.  Bouton,  35  Neb.  898 ; 
Comer  v.  Knowles,  17  Kan.  436 : 
Hewitt  V.  Newberger,  20  N,  Y.  S. 
913;  s.  c,  66  Hun,  230;  Cunningham 
V.  Electric  Light  Co.,  17  N.  Y.  S.  372, 
and  cases  cited. 

« Spice  V.  Steinruck,  supra;  John- 


§  561.]  FALSE    IMPRISONMENT.  £09 

sential  to  aver  and  prove  that  the  defendant  used  any  vio- 
lence in  causing  the  imprisonment.^  In  stating  the  cause  of 
action  the  ordinary  rules  of  pleading  should  be  observed, 
and  hence  it  is  not  necessary  to  set  forth  all  the  facts  and  cir- 
cumstances, but  the  same  should  be  stated  in  plain  and  con- 
cise language,  and  not  at  great  length.-  The  particular  in- 
strumentality by  which  the  plaintiff  was  deprived  of  his 
liberty  should  be  stated;'  and  if  the  petition  does  not  show 
that  the  arrest  was  unlawfully  made,  it  is  demurrable.* 

Sec.  561.  Action  against  an  individual  making  complaint. 
Upon  the  question  as  to  the  liability  of  a  person  making  a 
complaint  or  affidavit  before  a  magistrate  or  other  court, 
there  seems  to  be  some  conflict  between  the  different  courts 
in  New  York.  The  higher  and  lower  courts  are  not  in  har- 
mony upon  this  question.  In  Ohio,  however,  the  rule  is  laid 
down  in  unequivocal  terms,  that  where  a  court  issues  a  war- 
rant of  arrest  without  authority  in  law,  that  is,  without  juris- 
diction, both  the  court  and  complainant  are  responsible  in  an 
action  for  false  imprisonment  at  the  suit  of  an  injured  party."^ 
Other  jurisdictions  have  adopted  the  same  rule,  and  hold  all 
who  participate  in  the  unlawful  detention  liable;^  while  still 
other  courts  hold  that  the  one  who  makes  the  complaint  is 
not  responsible  for  a  wrongful  arrest,  placing  the  responsibil- 
ity entirely  upon  the  officer  whose  duty  it  is  to  determine 
whether  or  not  a  warrant  should  issue.'^  The  courts  adopting 
the  latter  view,  however,  hold  that  the  complainant  to  become 
responsible  must  be  guilty  of  some  improper  conduct  in  con- 
nection with  the  arrest  and  imprisonment,  and  that  he  is  re- 
lieved if  he  has  reasonable  cause  to  believe  that  the  crime 

son  V.  Corrington,  3  W.  L.  B.  1139.  STiuesdell  v.  Combs,  33  O.  S.  186; 

Although  this  would  seem  unneces-  "Wheeler  v.  Gavin,  5  O.  C.  C.  C46. 

sary   according   to  some  authority.  6  Johnson  v.  Boutou,  35  Neb.  896; 

Johnson  v.  Von  Kettler,  84  III.  315;  Comer  v.  Knowles,   17  Kan.  436;  7 

Woodall  V.  McMillan,  38  Ala.  623.  Am.    &  Eng.    Enc.    of    Law,    679; 

1  Hawk  V.  Ridgeway,  33  111.  473.  Vaughn    v.   Congdon,    56   Vt    111; 

2  Eddy  V.    Beach,  7  Abb.  Pr.   17:  Miller  v.  Adams.  52  N.  Y.  409;  Guil- 
Shaw  V.  Jayne,  4  How.  Pr.  119.  leaume  v.  Rowe,  94  N.  Y.  269. 

3  Eddy  V.  Beach,  siipm.  ~  Latham   v.  Libby,  38  Barb.  339 ; 
<  Cunningham  v.  East  River  Elec.     Hewitt  v.  Newberger,  20  N.  Y.  S.  913; 

Light  Co.,  17  N.  Y.  S.  372;  Marks  v.  s.  c,  66  Hun,  230;  Teal  v.  Fissel,  28 
Townsend,  97  N.  Y.  596 :  C^astro  v.  Fed.  Rep.  351 ;  Langford  v.  Railroad 
■Uriarte,  12  Fed.  Rep.  250.  Co.,  144  Mass.  431. 


510  FALSE   IMPRISONMENT.  [§  562. 

has  been  committed,  and  merely  furnishes  the  information.^ 
"Where  the  affidavit  is  made  under  a  municipal  ordinance 
which  is  afterwards  declared  invalid,  such  person  is  not  liable 
to  an  action  for  false  imprisonment.^  In  setting  forth  a  cause 
of  action  for  false  imprisonment  against  one  who  makes  the 
complaint,  the  petition  should  state  facts  showing  that  the 
imprisonment  was  without  jurisdiction  and  without  legal  pro- 
cess.' It  should  also  be  averred  that  the  order  of  arrest  has 
been  vacated.*  If  imprisonment  is  made  upon  a  lawful  war- 
rant at  the  instigation  of  a  person  for  the  purpose  of  enforc- 
ing a  debt,  the  remedy  is  for  malicious  prosecution.* 

Sec.  562.  Actions  against  magistrates  and  judicial  offi- 
cers.—  It  is  well  settled  that  inferior  tribunals  clothed  with 
special  or  limited  jurisdiction  must  at  their  peril  keep  within 
the  bounds  of  their  prescribed  jurisdiction,  and  are  answer- 
able to  any  one  injured  by  any  acts  in  excess  thereof.^  A 
justice  of  the  peace  cannot  be  held  liable  where  he  believes  a 
defendant  is  guilty  of  an  offense  charged  when  acting  within 
his  jurisdiction.'  The  duties  of  a  magistrate  in  issuing  an 
order  of  arrest  in  civil  actions  are  regarded  as  of  a  ministerial 
character,  and  an  action  for  an  injury  in  this  respect  should 
be  upon  his  bond.^  So  long  as  a  judicial  officer  or  magistrate 
keeps  himself  within  the  limits  of  the  jurisdiction  conferred 
upon  him,  he  cannot  be  held  liable  for  a  wrongful  imprison- 
ment under  a  mistaken  idea  of  the  law;^  nor  is  he  liable  if  he 
believes  the  accused  probably  guilty  of  the  offense  charged  j^*^ 
nor  IS  a  magistrate  liable  if  he  commits  a  person  under  an 

1  Teal  V.  Fissel,  supra;  Murphy  v.  Clark  v.  May,  2  Gray,  410 ;  Knowles 
Walters,  34  Mich.  180.  v.  Davis,  2  Allen,  61 ;  Piper  v.  Pear- 

2  Wheeler  v.  Gavin,  5  O.  C.  C.  246;  son,  2  Gray,  120;  Courcey  v.  Cox,  94 
Gifford  V.  Wiggin,  52  N.  Y.  904.  Cal.   665.     Cf.  Lang  v.  Benedict,  T6 

s  King  V. .  Johnston,  81  Wis.   578 ;  N.  Y.  12. 

Murphy  v.  Martin,  58  Wis.  276 ;  Getz-  '  Marks   v.  Sullivan,  8  Utah,  406 : 

enleuchter  v.  Neumeyer,  64  Wis.  321 ;  33  Pac.  Rep.  224  (1893). 

Cunningham  V.  Electric  Light  Co.,  17  8  pjace  v.  Taylor,  22  O.  S.  317. 

N.  Y.  S.  372 ;  Nemitz  v.  Conrad,  22  9  Budd  v.  Darling,  25  Atl.  Rep.  479 ; 

Ore.  106;  29   Pac.    Rep.    548  (1892);  s,  C,  64  Vt.  456 ;  Austin  v.  Vrooman, 

Painter  v.  Ives.  4  Neb.  122.  38  N.  Y.  229 ;  Booth   v.  Karrus,   26 

4  Searll  v.  McCracken,  16  How,  Pr.  Atl.  Rep.  1013  (N.  J.,  1893) ;  Hender- 

262.  son  V.  Brown,  1  Caines,  92. 

6  Mullen  v.  Brown,  138  Mass.  114;  i^  Booth  v.   Karrus,   26    Atl.   Rep. 

Coupal  V.  Ward,  106  Mass.  289 ;  Colter  1013  (N.  J..  1893) ;  Marks  v.  Sullivan. 

V.  Lower,  35  Ind.  285.  8  Utah,  406 ;  33  Pac.  Rep.  224 

•  Truesdell  v.  Combs,  33  O.  S.  194 ; 


§§  563,  564.J  FALSE   IMPRISONMENT.  511 

ordinance  which  is  invalid.^  An  action  may  be  joined  against 
both  the  judge  who  issued  the  warrant  and  the  oflBcer  making 
the  arrest.2 

Sec.  563.  Actions  against  other  oflScers.—  There  is  no  lia- 
bility on  the  part  of  an  oflBcer  making  an  arrest  under  a  war- 
rant issued  by  a  court  which  has  jurisdiction  of  the  offense 
charged,  as  he  is  protected  under  such  a  writ.'  An  action 
for  false  imprisonment  will  not  lie  where  the  arrest  was  made 
under  a  lawful  process  wrongfully  obtained.*  A  constable 
who  acts  under  the  orders  of  a  justice  of  the  peace,  who  re- 
ceives a  witness  in  a  criminal  case  in  obedience  to  an  order  of 
commitment  and  detains  him  for  one  day  during  the  continu- 
ance of  the  case,  is  not  liable  for  an  action  for  false  imprison- 
ment ;  5  nor  is  an  oflBcer  of  the  legislative  department  liable 
for  an  arrest  made  under  the  direction  of  the  legislature ; «  but 
an  oflBcer  who  arrests  a  man  and,  instead  of  taking  him  before 
a  magistrate  to  be  dealt  with  according  to  law,  compels  him 
to  pay  a  fine  or  go  to  jail,  is  liable  for  false  imprisonment.' 
A  police  oflBcer  is  not  authorized  by  law  to  arrest,  without  a 
warrant,  any  one  on  suspicion  of  being  a  deserter  from  the 
United  States  army.  Hence  an  action  for  false  imprisonment 
will  lie  against  an  oflBcer  making  such  an  arrest.^ 

Sec.  564.  Actions  against  carriers  of  passengers  —  Liabil- 
ity of  carriers. —  A  carrier  of  passengers  is  liable  for  any  mis- 
conduct of  its  servants  in  wrongfully  ejecting  a  passenger  and 
causing  his  arrest.^  The  company  cannot  be  held  liable  if  the 
arrest  be  made  by  the  police  authorities." 

1  Wheeler  v.  Gavin,  5  O.  C.  C.  246 ;  *  Hobbs  t.  Ray,  25  AtL   Rep.  694 

Brooks    V.   Mangan,   86  Mich.    576.  (R  L,  1892). 

See,  also,  Gifford  v.  Wiggins,  52  N.  »  Fawcett  v.  Linthecum,  7  O.  C.  G 

W.  Rep.  904  (Minn.,  1892) ;  Kelly  v.  141. 

Beemish,  4  Gray,  83.  6  Canfield   v.   Gresham,   17  S.  W. 

2Zeller  V.  Martin,  84  Wis.  4;  54  N.  Rep.  10;  82  Tex.  10. 

W.  Rep.  330  (1893).  'Twilley   v.  Perkins,  26  AtL  Rep. 

3  Jennings   v.  Thompson,  55  N.J.  286  (Md.,  1893). 

L  55;  Cooley  on  Torts,  400;  Seava-  8  Kendall  v.  Scheve,  3  O.  C.  C.  526. 

cool  V.  Boughton,  21  Am.  Dec.  190;  » Shea  t.  Manhattan  Ry.  Co.,  15  Daly, 

Lieb  V.  Irou  (.'o.,  12  So.  Rep.  67  (Ala.,  528;  Oppenheimer  v.  Manhattan  Ry. 

1893);  Hobbs   v.   Ray,   25  Atl.  Rep,  Co.,  18  N.  Y.  S.  411;  Southern  Pac, 

694   (R  I.,  1892);  Johnson  v.  Morton,  Co.  v.  Hamilton.  54  Fed.  Rep.  468; 

53  N.  W.  Rep.  816 ;  s.  c,  94  Mich.  1 ;  Norfolk,  etc.  R  R  Co.  v.  Galliher,  1& 

Marks  v.  Sullivan,  8  Utah,  406;  &  a,  &  E.  Rep.  935  (Va,  1893)i 

33  Pac.  Rep.  824  (1893).  lo  Oppenheimer  v.   Manhattan  Ry. 


512  FALSE  iMPRisoNMh;:;!'.  [^';}  505-5(37. 

Sec.  565.  Averment  of  damages. —  If  the  plaintiff  desires 
to  make  any  claim  for  damages  for  injury  to  character,  the 
facts  with  reference  thereto  must  be  specially  pleaded ;  ^  but 
the  recovery  will  not  be  limited  to  nominal  damages  merely 
because  there  is  no  allegation  of  special  damages.^  Evidence 
as  to  special  damages  arising  by  reason  of  the  kind  of  food 
furnished  during  imprisonment  cannot  be  admitted  in  the  ab- 
sence of  an  averment  to  that  effect.'^ 

Sec.  566.  Petition  for  damages  for  false  imprisonment. — 

Plaintiff  states  that  the  defendant  D.  E.  is.  and  was  at  the 
time  of  the  grievances  hereinafter  complained  of,  a  police  offi- 
cer of  the  city  of  C.     That  on  the day  of ,  18 — ,  said 

defendant  arrested  and  imprisoned  this  plaintiff,  and  unlaw- 
fully and  by  force  deprived  him  of  his  liberty  for  one  da}"  on 
a  pretended  charge  of  desertion  from  the  United  States  army. 

That  by  reason  of  such  unlawful  and  wrongful  imprison- 
ment, plaintiff  was  thereby  prevented  from  attending  to  his 
business  during  the  time  he  was  so  under  arrest,  and  incurred 

an  expense  of  s in  obtaining  his  discharge  and   suffered 

damages  in  sum  of  s ,  for  which  sum  he  prays  judgment. 

Note.—  Adapted  from  Kendall  v.  Donahue,  3  O.  C.  C.  526. 

Sec.  567.  Defenses  to  actions  for  false  imprisonment. — 

The  fact  that  an  arrest  was  justifiable  is  purely  a  matter  of 
defense,  and  must  be  specifically  set  forth,  as  it  cannot  be 
shown  under  a  general  denial.^  A  defense  that  an  offense  had 
been  committed  and  that  the  officer  had  reasonable  grounds  to 
believe  that  the  plaintiff  was  guilty  should  be  specially  pleaded 
and  cannot  be  made  under  a  general  denial.^  An  answer 
which  attempts  to  justify  an  arrest  and  imprisonment  must 
identify  the  trespass  complained  of  ;^  but  an  answer  of  justi- 
fication sufficiently  identifies  the  imprisonment  if  it  states  that 
it  is  the  same  imprisonment  complained  of  by  the  plaintiff.' 
A  defense  that  the  defendant  assisted  the  officer  who  made 
the  arrest,  under  compulsion,  is  good  where  there  has  been 

Oo.,  supra;  Gillingham  v.  Railroad  *  Carey  v.  Sheets.  60  Ind.  17 ;  Boaz 

Co.,  35  W.  Va.  588.     But  see  Cun-  v.  Tate.  43  Ind.  61 :  Willson  v.  Man- 

ningham  v.   Railway  Co.,  3  Wash,  hattan  Ry.  Co..  20  N.  Y.  S.  852. 

471;  28  Pac.    Rep.   745:   Palmeri   v.  MVhite  v.  McQueen.  96  Mich.  249; 

Manhattan  Ry..  133  N.  Y.  261.  55  N.  W.  Rep.  843  (1893). 

1  Comer  v.  Knowles.  IT  Kan.  436.  ^  Gallimore  v.  Ammerman,  39  Ind. 

2Josselyn  v.  McAllister,  22  Mich.  323. 

300,  '  Scircle  v.  Neeves.  47  Ind.  289. 

'Miles  V.  Weston,  60  IlL  361, 


II 


g  568.]  FALSE    IMPRISONMENT.  513 

filed  a  proper  affidavit  and  legal  process  issued.*  And  so  a  de- 
fense that  a  marshal  or  constable  arrested  the  plaintiff  on  the 
street  while  intoxicated,  and  that  he  had  just  assaulted  a  cit- 
izen, and  that  he  was  arrested  and  detained  until  he  became 
sober,  is  good  where  a  criminal  charge  is  properly  filed  against 
him.2  An  answer  that  an  arrest  was  made  under  a  warrant 
must  clearly  show  that  the  arrest  was  made  for  the  dense 
charged  in  the  complaint.^  It  is  a  good  defense  by  an  indi- 
vidual that  at  the  time  he  made  the  affidavit  for  arrest  he 
acted  upon  the  advice  of  the  justice.*  It  has  been  held  that 
an  action  will  not  lie  against  a  person  who  makes  a  complaint 
before  a  magistrate  or  arresting  officer  where  the  warrant 
issued  thereon  is  sufficiently  regular  on  its  face  to  protect  the 
officer  who  executes  it.* 
Sec.  568.  Answer  of  jiistificatiou  under  process. — 

Defendant  was  a  constable  of township, county, 

Ohio,  duly  elected,  qualified  and  acting  as  such.    On  the 

day  of ,  18—,  by  virtue  of  a  warrant  of  arrest  duly  issued 

by  a  duly  qualified  and  acting  justice  of  the  peace  of  said  town- 
ship, he  arrested  and  brought  before  said  justice  one  P.  G-., 
charged  with  the  crime  of  burglary  and  larceny,  the  said 
charge  then  and  there  pending  before  the  justice  upon  the 
complaint  of  one  C.  The  accused,  on  being  arraigned,  pleaded 
not  guilty;  and  in  the  opinion  of  the  magistrate  it  was  nec- 
essary to  adjourn  the  examination  of  the  accused  on  the 
pending  charge  to  the  next  day,  which  was  done.  The  ac- 
cused was  thereupon  ordered  to  enter  into  a  recognizance  for 
his  appearance  for  an  examination,  which  he  failed  to  do,  and 
was  by  the  magistrate  committed  to  his  custody;  that  at  the 
same  time  the  plaintiff  was  present  at  said  trial  under  sub- 
poena as  a  witness  against  the  accused,  and  was  required  by 
said  justice  to  enter  into  recognizance,  with  sufficient  sureties, 

to  give  evidence  against  the  accused  on  the day  of , 

18—,  which  the  said  plaintiff  failed  and  refused  to  do;  that 
thereupon  the  said  magistrate,  by  an  order  and  warrant  in 
writing,  duly  committed  said  plaintiff  into  the  custody  of  this 
(lolendant  for  safe  keeping  until  he  complied  with  the  order 
of  said  magistrate  or  was  otherwise  discharged.  That  in  pur- 
suance of  said  order  of  commitment  this  defendant  received 
the  said  plaintiff  into  his  custody  and  detained  him  until  he 

1  Goodwine  v.  Stephens,  63  Ind.  112.     Stanton  v.  Hart,  27  Mich.  539 :  Straus 

2  Wilke  V.  Holt,  95  Ind,  469.  v.  Young,  36  Md.  247. 

8  Young  V.  Warder,  94  Ind.  357.  *  Wheatou  v.  Beecher,  49  Mich.  348 ; 

■«  Dolbe    V.    Norton,   23    Kau.    101.     Newman  v,  Davis,  58  la.  447. 
See  White  v.  Tucker,  16  O.  a  468 ; 
83 


514 


FALSE    IMPKISONMENT. 


t§  569. 


was  discharged,  and  had  him  before  the  magistrate  on  the 

day  of ,  IS — ,  to  give  evidence  against  the  accused; 

that  this  defendant  did  not  otherwise  or  to  any  further  ex- 
tent detain  or  imprison  the  plaintiff,  and  therefore  asks  that 
he  may  go  hence,  with  his  costs. 

Sec.  560.  Answer  by  individual.— 

That  on  the day  of ,  18—,  the  horse  of  one  C.  D., 

of  the  value  of  I — — ,  had  been  stolen  and  feloniously  taken 

away  from county,  state  of  Ohio.     [State  the  causes  of 

suspicion  against  the  plaintiff?^ 

That  the  defendant,  having  good  and'  probable  cause  to 
suspect  that  the  plaintiff  committed  said  felony,  arrested  him 

and  took  him  before  E.  F.,  a  justice  of  the  peace  of  said  

county,  to  be  examined  and  dealt  with  according  to  law,  and 
the  acts  above  set  forth  are  the  same  of  which  the  plaintiff 
complains  in  his  said  petition. 


CHAPTEK  37. 


FORECLOSURE    OF    MORTGAGES  —  REAL    AND    CHATTEL 
DEMPTION  AND  DECLARING  DEED  A  MORTGAGE. 


RE- 


Sec.  570.  Parties  plaintifif  to  actions 
in  foreclosure, 

571.  Parties  defendant. 

572.  Limitations    to  actions   to 

foreclose  mortgages. 

573.  Nature  of  the  action  —  Per- 

sonal judgment,  etc. 

574.  Averments  as  to  liens. 

575.  Allegation  of  demand. 

576.  Stipulations  as  to  defaults 

in  payment  of  instal- 
ments and  interest 

577.  Litigating    paramount 

titles. 

578.  Petition  in    foreclosure  by 

the  original  mortgagee  — 
Simple  form. 

579.  Petition     where      another 

party  claims  to  own  a 
portion  of  the  premises, 
and  against  other  mort- 
gagees. 

580.  Petition     by    executor    of 

mortgagee  against  widow 
and  heirs  of  mortgagor 
for  foreclosure  merely. 

581.  Petition    where    mortgage 

was  taken  upon  fraudu- 
lent representations  that 
there  were  no  other  mort- 
gages. 

582.  Petition  against  defendants 

holding  tax-title  deed 
claimed  to  be  void,  and  de- 
fendant holding  premises 
under  land  contract 

583.  Petition    by    assignee     of 

notes  and  mortgage 
against  maker  and  in- 
dorser,  for  personal  judg- 
ment and  foreclosure. 


Sec.  584.  Petition  by  mortgagee 
against  purchaser  assum- 
ing mortgage  —  Prayer 
for  personal  judgment 

585.  Service. 

586.  The  right  to  trial  by  jury. 

587.  Sale    of    mortgaged  prop- 

erty. 

588.  Motion     to    set    aside,    in 

part,  decree  of  confirma- 
tion. 

589.  Defenses     in     foreclosure 

proceedings. 

590.  Answer     that     defendant 

holds  premises  under  land 
contract  and  that  mort- 
gage was  given  after 
execution  of  contract 

591.  Answer    asking    to    have 

mortgaged  premises  sold 
in  inverse  order  of  alien- 
ation. 

592.  Answer    that    note    bears 

usurious  interest  and  that 
payments  made  thereun- 
der reduce  amount  due. 

593.  Answer    that    notes    were 

without  consideration 
and  were  purchased  after 
maturity, 

594.  Answer  and  cross-petition 

setting  up  judgment  lien, 

595.  Answer     that     note     and 

mortgage  was  made  to 
cheat  and  defraud  credit- 
ors, and  without  consid- 
eration. 

596.  Answer  by  defendant  after 

proceeds  are  in  court, 
contesting  co-defendant's 
mortgage. 


516 


FORECLOSURE  OF  MORTGAGES. 


[§  570. 


Sec.  597.  Answer  and  cross-petition 
of  building  association  in 
foreclosure  proceedings. 

FORECLOSURE  OF  CHATTEL  MORT- 
GAGE. 

698.  Actions  to  foreclose  chattel 

mortgages. 

699.  Petition  to  foreclose  chattel 

mortgage. 


DEED  DECLARED  A  MORTGAOB. 

Sec  600.  Action  to  declare  deed  a 
mortgage. 

601.  Petition  to  declare  deed  a 
mortgage  when  there  ia 
a  verbal  agreement  to  re- 
convey. 

603.  Reformation  of  mortgages. 

603.  Action  to  redeem  mortgage. 


1 


Sec.  670.  Parties  plaintiff  to  actious  in  foreclosure. — 

One  of  the  most  difficult  and  important  steps  to  be  taken  in 
the  foreclosure  of  a  mortgage  or  other  lien  is  to  see  that  all 
proper  parties  are  brought  before  the  court.  Close  examina- 
tion of  records  is  required.  The  measure  of  responsibility  is 
equally  as  great  upon  the  person  who  counsels  the  purchaser. 
As  adjudications  upon  the  subject  of  parties  in  foreclosure 
proceedings  are  numerous,  it  therefore  seems  unnecessary  to 
attempt  in  a  work  of  this  nature  to  make  a  complete  review. 
As  the  proceeding  is  an  adversary  one,  it  is  essential  that 
jurisdiction  be  acquired  over  the  person  and  the  res}  It  is 
settled  that  the  only  proper  parties,  as  far  as  mere  legal  rights 
are  concerned,  are  the  mortgagor  and  mortgagee,  and  those 
who  have  acquired  rights  under  them  subsequent  to  the 
mortgage.^  It  is  the  duty  of  the  court  upon  discovering  that 
all  proper  parties  are  not  before  it,  to  order  them  to  be  made 
parties,'  as  it  is  the  well-settled  rule  of  practice  that  claims 
may  be  brought  in  at  any  time  up  to  the  distribution  of  the 
proceeds,  such  claims  being  entitled  to  share  therein.* 

Following  the  equitable  rule  now  embodied  in  the  code, 
that  an  action  should  be  brought  in  the  name  of  the  real  party 
in  interest,  one  who  merely  holds  an  equitable  interest  in 
the  property,  such  as  mortgagee  or  pledgee,  may  maintain 
an  action  for  foreclosure.*    All  persons  interested  in  the  mort- 

1  Moore  v.  Starks,  1  O.  S.  369,  answer  cannot  be  stricken  from  the 

2  Frost  V.  Koon,  30  N.  Y.  428;  files  (Alleraania  v.  Mueller,  supra), 
Eagle  F.  Co.  v.  Lent,  6  Paige,  635 ;  nor  should  the  court  dismiss  a  neces- 
Emigrant,  etc.  Bank  v.  Goldman,  75  sary  party  asserting  a  lien  without 
N.  Y.  127,  131.  prejudice     Thacker    v.    Dickinson, 

'Thacker  v.  Dickinson,  3  O.  C.  C.  sujiva. 

144.    See  anfe,  sec.  16.  ^See  ante,  sec.  8.    See  also  cases 

■*  AUemania  v.  Mueller,  7  W.  L.  B.  cited  in  note  1,  on  p.  518. 
301  (Ham.  Co.  C.  P.,  1892).    Such  an 


§  570.]  rOKECLOSUKE   OF   MORTGAG-ES.  517 

gaged  premises  should  be  made  parties  in  order  to  bar  tho 
right  of  redemption,  even  though  the  sale  is  made  upon  the 
oldest  lien.  Where  lienholders  are  so  numerous  that  it  be- 
comes impracticable  to  bring  them  all  before  the  court  as 
parties,  some  may  be  allowed  to  prosecute  for  the  benefit  of 
all.^  An  administrator  may  maintain  an  action  to  foreclose  a 
mortgage  made  payable  to  his  decedent;-  and  so  may  a 
mortgagee,  who  has  been  appointed  administrator  of  his  mort- 
gagor's estate,  maintain  an  action  to  foreclose  his  own  mort- 
gage against  the  heirs.^  A  person  who  acquires  notes  and 
mortgages  by  virtue  of  proceedings  in  attachment  may  main- 
tain the  action,  as  ownership  is  in  legal  effect  assigned  to  him.* 
An  assignee  of  one  of  several  notes  secured  by  mortgage  may 
bring  an  action  in  his  own  name.*  Where  one  of  several  notes 
secured  by  mortgage  has  been  assigned,  each  person  who 
holds  a  separate  note  must  bring  a  separate  action  thereon 
for  foreclosure,  as  they  cannot  join  in  one  suit;^  and  if  the  as- 
signment be  absolute  and  the  entire  interest  transferred,  the 
mortgagee  need  not  be  made  a  party,  although  it  may  be  the 
better  practice  to  do  so.^  All  holders  of  notes  must  be  made 
parties,  so  that  the  amounts  and  priorities  may  be  determined.* 
A  junior  mortgagee  may  maintain  an  action  to  foreclose 
against  those  having  an  interest  in  the  premises  to  subject  the 
same  to  the  payment  of  all  liens  thereon,  without  having  first 
paid  off  the  prior  mortgage.^  An  owner  of  a  mortgage  who 
has  pledged  the  same  as  collateral  may  nevertheless  bring  an 
action  in  foreclosure,  but  should  make  his  pledgee  a  party.^"  It 
is  equally  well  settled  that  a  pledgee  may  maintain  an  action 
to  foreclose  in  his  own  name,  but  is  limited  to  the  recovery  only 

1  Carpenter  v.  Canal  Co.,  35  0.  S.        "McGuffej'  v.  Finley,   20  O.  474; 
307.  Newman  t.  Chapman,  2  Rand.  92. 

2  Miller  V.  Donaldson,  17  O.  264.  8  Winters  v.  Bank,  33  O.   S.    250; 

3  Hunsucker  v.  Smith,  49  Ind.  114.     Bushfield  v,  j\Ie3-er,  10  O.  S.  334 ;  Bank 
4Alsdorf  V.   Reed,   4r>  O.   S.   653;     t.  Covert,    13  O.  240.     This  rule  is 

Secor  V.  Witter,  39   O.   S.  218;  Ed-  based  upon  the  theory  that  the  as- 

wards  v.  Edwards,  24  O.  S.  411.  signment  operates  as  an  assignment 

^Swartz  V.    Leist,    13    O.   S.    419;  jaro  ^««?o  of  the  mortgage. 
Gower  v.  Howe,  20  Ind.  396 ;   Myers        »  Stewart  t.  Johnson,  30  0.  S.  24. 
V.  Wright,  33  111.  284.  10  Simson  t.  Satterlee,  64  N.  Y.  657; 

fiSivenson  V.  PlowCo.,  14  Kan.  887;  McKinney  t.  Miller,  19   Midi.    142; 

Pettibone  v.  Edwards,  15  Wis.  104.  George   v.  Woodward,  40  Vt.    672; 

Brunnette  v.  Schetter,  21  Wia  189. 


518  FORECLOSURE    OF    MORTGAGES.  [§  571. 

of  the  amount  of  his  own  claim.^  A  mortgagee  who  is  a 
trustee  for  the  holders  of  notes  secured  hy  mortgages  is  a 
proper  party  plaintiff,  although  he  does  not  own  anything  in 
his  own  right.-  He  falls  within  the  meaning  of  the  code'  as 
a  person  with  whom  or  in  whose  name  a  contract  is  made 
for  the  benefit  of  another,  and  is  expressly  authorized  to 
bring  the  action.  He  is  more  than  a  mere  mortgagee  holding 
naked  legal  title  to  the  mortgaged  property.  He  is  presump- 
tively clothed  with  requisite  power  to  act  for  the  holders  of 
the  note  in  an  action  to  collect  the  debt.  "Whether  or  not 
the  beneficiaries  are  numerous,  he  ma}"  nevertheless  sue  with- 
out uniting  those  for  whose  benefit  the  action  is  prosecuted.* 
Sec.  571.  Parties  defendant. —  All  persons  who  have  claims 
against  or  are  interested  in  the  mortgaged  premises  should 
be  made  parties  to  bar  the  liens  or  right  of  redemption.  Fore- 
closure proceedings  being  adversary,  it  is  essential  that  juris- 
diction over  both  person  and  thing  be  acquired.  The  mort- 
gagor and  all  minor  defendants  must  be  personally  served. 
The  appointment  of  a  guardian  ad  litem  for  minor  defend- 
ants who  have  not  been  served  with  process  does  not  give 
jurisdiction  over  them.^  A  widow  is  entitled  to  dower,  even 
though  she  signs  a  mortgage,  where  her  husband's  assignee 
has  sold  the  mortgaged  premises  and  also  other  property,  the 
proceeds  of  which  pay  the  mortgage  debts  and  cancel  the 
mortgage  during  the  life-time  of  the  husband.  A  sale  under 
such  circumstances  does  not  bar  her  right  of  dower.^  So  a 
widow  who  united  with  her  husband  in  a  mortgage  upon  lands 
seized  by  him  during  coverture  should  be  made  a  party  so  as 
to  bar  her  right  of  redemption;  and  foreclosure  before  her 
husband's  death  without  making  her  a  party  to  the  proceed- 
ino-s  will  not  divest  her  of  that  right.'  The  dower  of  a  wife 
is  not  affected  in  foreclosure  proceedings  where  a  defendant 
files  an  answer  setting  up  a  mortgage  signed  by  her,  but  fails 
to  make  her  a  party .^    The  wife  or  widow  is  not  entitled  to 

iBard    v.   Poole,    13    N.  Y,    495;  «  Coe  v.  Railroad  Co.,  10  O.  S.  372  j 

Bloomer  v.  Sturgess,  58  N.   Y.    168 ;  Pomeroy's  Code  Rem.,  sec.  174. 

Dalton  V.  Smith,  86  N.  Y.  176 ;  Wil-  5  Moore  v.  Starks,  1  O.  S.  369. 

son  V.  Giddings,  28  O.  S.  554.  «  Ketchum  v.  Shaw,  28  O.  S.  50a 

2  Hays  V.  Coal  Co.,  29  O.  S.  330.  ^  McArthur   v.  Frauklin.  16  O.  S. 

»  Ante,  sec.  9,  193 ;  s.  c,  15  O.  S.  485. 

8  Parmenter  v.  Binkley,  28  0.  S.  821 


I 


§571.]  FORECLOSURE    OF   MORTGAGES.  519 

dower  in  premises  as  against  a  mortgage  or  lien  which  at- 
tached before  the  marriage,  and  in  an  action  against  the 
mortgagor  to  foreclose  such  a  mortgage  his  wife  is  not  a  neces' 
sary  party.^  It  is  also  held  that  a  wife  of  a  guarantee  who  did 
not  sign  the  mortgage  is  not  a  necessary  party,  and  that  she 
need  not  be  made  a  party  where  the  mortgage  was  given  to 
secure  purchase-money.^  But  upon  the  whole  it  seems  that 
the  wife  should  be  made  a  party  in  any  case,  that  her  right 
of  redemption  may  be  cut  off.  Heirs  or  devisees  of  a  mort- 
gagor must  be  made  parties,"  and  a  judgment  against  a  de- 
ceased mortgagor  without  the  personal  representative  or  heirs 
being  made  parties  is  void.*  "Where  the  defendants  are  in- 
fants, some  courts  hold  that  the  petition  should  state  what 
their  interest  is  —  whether  it  is  paramount  or  subordinate  to 
plaintiff's  mortgage.^ 

In  an  action  of  foreclosure  against  a  trustee,  the  beneficiary 
or  cestui  que  trust  is  a  necessary  party ;  ^  though  it  has  been 
held  in  an  action  against  an  executor  and  trustee  of  a  will 
of  a  mortgagor  that  the  cestvAs  que  trust  are  suflBciently  repre- 
sented by  the  executor  and  trustee.'  Where  a  trustee  brings 
an  action  to  foreclose  a  mortgage  given  for  the  benefit  of 
creditors,  the  beneficiaries  should  be  made  parties  thereto.' 
An  action  of  foreclosure  may  be  maintained  in  case  of  death 
of  the  mortgagor  before  the  expiration  of  the  time  or  the 
bringing  of  suits  against  the  estate  of  the  decedent,  in  which 
case  the  administrator  and  heirs  are  proper  parties.*  But  an 
administrator  of  a  mortgagor  is  not  a  proper  party  to  the  ac- 
tion, where  the  premises  passed  from  the  mortgagor  before 
his  death,  unless  a  personal  judgment  is  desired  against  the 
estate.^''     A   mortgagor   who,   subsequent  to  the   execution 

1  Wilson   V.  Scott,  29   O.  S.   636 ;  3  Nev.  57 ;  Moore  v.  Pope,  97  Ala.  462 ; 

Phillipps  V.  Keels,  4  O.  C.  C.  316.  11  So.  Rep.  840  (1892). 

2 Ruffner  v.  Evans,  2  O.  C.  C.  70 ;  'In  re  Booth,  62  L.  J.  Ch.  40 ;  In  re 

Welch  V.  Buckins,  9  O.  S.  331 ;  Folson  Mitchell,  65  L.  T.  (N.  S.)  851. 

V.  Rhodes,  22  O.  S.  435.  f^  Kloone  v,  Bradstreet,  2    Handy, 

3  Green  v.  Ulyat,  3  W.  L.  M.  44  74 ;  S.  c,  7  O.  S.  322  ;  Bank  v.  Bell.  14 

<  Craven  v.  Bradley,  51  Kan.  336  ;  O.  S.  200. 

a  C,  32  Pac.  Rep.  1112  (1893X  9  Hathaway  v.  Lewis,  2  Disn.  260 ; 

*  Aldrich  v.  Lapham,  6  How.  Pr.  Hall  v.  Musler.  1    Disn.   36 :  Cinciu- 

129.  nati  Savings  Co.  v.  Jones,  4  W.  I* 

6  Hamilton  v.  Jacobs.  10  Am.  Law.  B.  475  ;  Hall  v.  Hall,  3  W.  L.  G.  82. 

Rec.  445  (C.  S.  C);  Mavrich  v.  Grier.  ^  Puckett  v.  Reed,  22  S.  W.  Rejfc 


520  FORECLOSURE    OF   MORTGAGES.  [§  571, 

of  the  mortgage,  conveys  all  his  interest  in  the  premises  to 
another,  is  not  a  necessary  party  where  a  simple  decree  of 
foreclosure  and  sale  of  the  premises  is  sought ;  ^  nor  is  a  mort- 
gagor who  has  conveyed  the  premises  to  a  grantee  who  as- 
sumes the  payment  of  the  mortgage  indebtedness  a  necessary 
party,^  unless  it  is  desired  to  hold  him  personally  in  his  rela- 
tion of  surety  to  his  grantee.  Nor  is  a  mortgagee  who  as- 
signs the  mortgage  a  necessary  party.^  The  rights  of  a  junior 
mortgagee  are  not  affected,  even  though  not  a  party  defend- 
ant, in  an  action  by  a  senior  mortgagee,  and  he  may  therefore 
maintain  an  action  against  the  purchaser  to  foreclose  his 
mortgao-e.'* 

To  bar  prior  lienholders  who  are  made  parties,  the  petition 
must  ask  that  they  be  required  to  set  up  their  claims  or  be 
barred,  which  must  be  followed  by  judgment  ordering  a  sale 
free  from  their  claims.*  Mortgagees  upon  a  railroad  represent- 
ing bondholders  are  not  necessary  parties.*  And  in  an  action 
against  a  railroad  company  to  foreclose  a  mortgage,  any  ma- 
terial-man not  an  original  contractor  cannot  come  in  as  a 
party  and  ask  relief  as  to  matters  independent  of  the  things 
in  litigation.^  Judgment  liens  acquired  during  the  pendency 
of  an  action  of  foreclosure,  though  the  holders  are  not  parties 
thereto,  are  divested  by  sale  of  the  mortgaged  premises  under 
decree  in  foreclosure.^     Where  property  is  sold  in  foreclosure 

515  (Tex.,  1893) ;  Roberts  v.  Piatt,  43  due  on  a  prior  mortgage   does  not 

111.  App.  608 ;  s.  c,  38  N.  E.  Rep.  484 ;  prejudice  the    mortgagor  or    other 

United  States  Security  Life  Ins.  Co.  parties  standing  in  the  same  relation 

V.  Vandergrift,  26  Atl.  Rep.  985  (N.  J.  to  the  mortgaged  property.   Stratton 

Ch.,  1893);  Gutzeit  v.  Pennie,  98  Cal.  v.  Reisdorph,  35  Neb.  314.     One  as- 

327;  S.  C,  33  Pac.  Rep.  199  (1893).  serting  a  right  under  a   mortgagor 

1  Jones  V.  Lapham,  15  Kan.  540;  prior  to  a  mortgage  involved  in  fore- 
Bigelow  V.  Bush,  6  Paige  Ch.  343.  closure  proceedings  should  be  made 

2  McArthur  v.  Franklin,  15  O.  S.  a  party  in  order  that  the  priorities 
485;  s.  C,  16  O.  S.  193.  may    be    determined.       Brown     v. 

3  Grant  v.  Ludlow,  8  O.  S.  1 ;  Mc-  Volkening.  64  N.  Y.  76. 

Guliey  v.  Finley,  20  O.  474.  *  Emigrant,  etc.  Bank  v.    Brown, 

4  Stewart  v.  Johnson,  30  O.  S.  24 ;  75  N.  Y.  127.     See  sec.  574,  post. 
Holliger  v.  Bates,  43  O.  S.  437;  Childs  « Coe  v.  Railroad  Co.,  10  O.  S.  373. 
V.   Childs,  10  O.    S.  339 ;  Moulton  v.  ■  Bartlett  v.  Patterson,  10  W.  L.  B. 
Cornish,   138   N.  Y.   133;  Goodall  v.  367. 

Mopley,  45  Ind.  355.    A  late  Nebraska        ^  Roberts  v.  Dorent,  30  W.    L.  R 
case  holds  that  in  an  action  of  fore-    397  (Franklin  Co.  C.  P.X 
closure  a  failure  to  find  the  amount 


§  572.]  FOEEOLOSUEE  OF  MOKTGAOE8.  521 

proceedings  against  several  persons  owning  land  as  tenant* 
in  common,  each  of  whom  is  bound  to  pay  his  equal  pro- 
portion of  the  debt,  a  portion  of  whom  buy  the  same  and  exe- 
cute another  mortgage  to  a  third  person  for  money  borrowed 
for  the  purchase  of  the  premises,  the  latter  mortgage  may  be- 
enforced  against  that  portion  of  the  original  owners  in  com- 
mon who  did  not  join  in  the  purchase  of  the  premises.* 
Devisees  under  a  will  who  have  an  interest  in  the  property 
should  be  made  parties  defendant.^  A  purchaser  assuming 
payment  of  a  mortgage  is  a  necessary  party  if  the  mortgagee 
desires  to  take  personal  judgment  against  him.  And  where 
there  are  several  purchasers,  each  of  whom  has  assumed  the 
mortgage,  all  should  be  joined,  as  each  one,  together  with  the 
mortgagor,  stands  in  the  relation  of  principal  and  surety;* 
and  if  the  mortgagee  seeks  to  enforce  the  personal  liability 
existing  between  such  parties,  it  is  necessary,  as  matter  of 
course,  that  all  should  be  made  parties.  But  a  purchaser  who 
takes  property  subject  to  a  mortgage  merely  is  not  a  neces- 
sary party  if  he  has  parted  with  the  premises,  as  a  personal 
judgment  cannot  be  obtained  against  him.*  A  guarantee  of 
a  mortgagor  does  not  lose  his  right  to  redemption  even  though 
not  made  a  party  to  the  proceedings.*  Persons  claiming 
title  by  virtue  of  a  sheriff's  sale,  which  in  fact  does  not  pass 
title,  are  not  necessary  or  proper  parties  to  an  action  to 
foreclose.* 

Sec.  573.  Limitations  to  actions  to  foreclose  mortgages. 
A  rule  has  been  adopted  by  the  supreme  court  of  Ohio 
with  respect  to  the  nature  of  a  mortgage  making  a  radical 
change  in  what  has  been  for  many  years  the  established  prac- 
tice as  to  the  time  within  which  a  proceeding  to  foreclose  shall 
be  brought.  The  court  holds  that  a  mortgage  is  a  specialty, 
and  hence  falls  within  the  fifteen-year  period  of  limitation 
prescribed  by  the  code.  This  doctrine  is  placed  upon  the 
theory  that,  as  between  mortgagee  and  mortgagor,  the  title, 
upon  condition  broken,  rests  in  the  former,  and  that  his  right 

1  Rhodes  v.  Raymer,  6  O.  C.  C.  68.  *  Farguay  v.  Felthousen,   45  Wia 

2Knierin  v.  Zaengerle,  10  W.  L.  B.  30. 

293  (Cuyahoga  Co.  C.  P.).  5  Childs  v.  Childs,  10  O.  S.  339. 

3  Scarry  v.  Eldridge,   63  Ind.   44 ;  «  Hall  v.  Yoells,  45  Cal.  584. 
Hand  v.  Hutchinson,  13  J.  &  S.  385. 


422  FORECLOSURE    OF    MORHJAGES.  [§'^73. 

still  exists,  as  at  coraraon  law,  to  recover  possession  of  the 
premises  as  by  the  old  form  of  action  in  ejectment;  that  a 
sale  on  foreclosure  is  not  a  recovery  of  real  estate.^  That 
being  the  case,  it  cannot  be  governed  by  the  statute  of  limit- 
ation relating  to  recovery  of  real  estate  prescribing  twenty- 
one  years.  This  is  a  logical  evolution  of  the  law.  Where  the 
mortgagor  has  died,  the  action  may  be  maintained  against 
the  administrator  or  executor.  The  ])etition  in  such  a  case 
must  show  that  eighteen  months  have  elapsed  since  the  date 
■of  the  administration  bond.^  An  action,  however,  against  the 
estate  on  the  notes  secured  by  the  mortgage  is  barred  in  four 
years,^  unless  it  has  been  presented  and  allowed  by  the  admin- 
istrator. But  the  provisions  under  which  an  action  on  the 
notes  are  barred  being  a  part  of  the  administration  law  are 
not  applicable  to  foreclosure  of  the  mortgage,  which  is  gov- 
erned by  the  more  general  act  concerning  the  limitation  of 
actions,  and  the  creditor  has  his  remedy  in  equity.* 

Sec.  573.  Nature  of  the  action  —  Personal  judgment, 
etc. —  The  mortgagee  at  common  law  had  the  right  to  prose- 
cute three  actions  concurrently,  namely,  an  action  to  foreclose, 
a  personal  action  on  the  debt,  and  an  action  in  ejectment  to 
recover  possession  of  the  mortgaged  property.*  The  mort- 
gagee may  still  pursue  any  of  the  remedies  which  existed 
prior  to  the  code,  such  as  ejectment,  now  recovery  of  real 
property,  against  one  claiming  to  have  purchased  the  premises 
from  the  mortgagor,**  or  an  action  of  forcible  entry  and  deten- 
tion, notwithstanding  the  pendenc}'"  of  foreclosure  proceedings.'' 
It  must  now  be  considered  settled  that  an  action  to  foreclose 
a  mortgage  cannot  be  maintained  after  the  note  which  it  se- 

»Kerr  v.  Lydecker,  51  O.  S. — ;  Ch.   330;  Delahy  v.  Clement,  3  IlL 

31  W.  L.  B.  290;  Heighway  v.  Pen-  201;  Joslyn  v.  Millspaugh,  27  Mich, 

dleton,  15  O.  735 ;  Allen  v.  Everly,  24  517 ;  Spence  v.  Insurance  Co.,  40  O.  S. 

O.  S.  97;  Hibbs  v.  Insurance  Co.,  40  517-20.    See  chapter  on  Real  Actions, 

O.  S.  543-559.  sec.  — . 

2  Green  v.  Ulyatt,  3  W.  L.  M.  44  6  Kerr  v.  Lydecker,  51  O.  S.  ; 

»R  S.,  sec.  6113.  31    W.    L.  B.  290;    ante,  sec.   572; 

<  Fisher  v.  Mossman,  11  O.  S.  42;  Hart  v.  Blackington,  W.  386;  Robin- 

Belknapp  v.  Gleason.  11  Cona  160;  son  v.  Fife,  3  O.  S.  551. 

9  W.  L.  B.  220;  Robinson   v.  Fife,  3  "Br  id  well  v.  Bancroft,  4  W.  L.  M. 

O.  S.  551 ;  Clark  v.  Potter,  32  O.  S.  49.  617  (1862). 

"Dunklev  v.  Van  Buren,  3  John. 


§  573.]  FORECLOSURE    OF    MORTGAGES.  523 

cures  is  barred.'  An  action  in  forclosure  is  strictly  a  proceed- 
ing in  rem,  although  the"  plaintiff  may  proceed  against  the 
defendant  personally  if  more  desirable.  In  an  action  to  fore- 
close a  mortgage  given  to  secure  payment  of  money,  or  to 
enforce  a  specific  lien  for  money,  the  plaintiff  may  also  ask  in 
his  petition  a  judgment  for  the  money  claimed  to  be  due;  and 
such  proceedings  shall  be  had  and  judgment  rendered  thereon 
as  in  a  civil  action  for  the  recovery  of  money.-  This  necessarilj^ 
applies  only  to  those  who  are  personally  liable  for  the  debt.^ 
A  personal  judgment  cannot  be  had,  however,  unless  the  peti- 
tion contains  an  express  prayer  therefor.*  The  pendency  of 
an  action  to  foreclose  a  mortgage  in  which  personal  judgment 
is  not  demanded  will  not  bar  another  action  upon  the  note 
alone  for  personal  judgment.'  Even  where  the  petition  only 
asks  that  the  mortgage  be  foreclosed  and  the  property  be  sold, 
an  amendment  may  be  made  so  that  personal  judgment  may 
be  obtained.^  A  widow  cannot  ask  for  personal  judgment  in 
an  action  by  her  for  the  recovery  of  her  dower  in  premises 
which  were  secured  to  her  by  a  mortgage  executed  by  a  pur- 
chaser from  her  husband,  based  upon  the  ordinary  defeasance 
clause  of  a  mortgage.''  Nor  can  personal  judgment  be  rendered 
against  a  nonresident  defendant  who  has  only  been  served  by 
publication ;  ^  nor  can  a  mortgagee  defendant  obtain  a  personal 
judgment  against  another  co-defendant.**  The  fact  that  no 
indorsement  is  made  upon  the  summons  of  the  amount  of 
judgment  asked  for,  when  the  petition  contains  a  prayer  for 
personal  judgment,  will  not  render  the  proceedings  erroneous,'" 
as  it  is  not  necessary  to  indorse  thereon  the  amount  or  nature 
of  the  claim." 

It  is  necessary  to  allege  title  to  the  note  and  mortgage, 

1  Kerr  v.  Lydecker,  51  O.  S. ;        sspence  v.  Insurance  Co.,  40  O.  S. 

31  W.  L.  B.  290.  517. 

2  0.  Ck)de,  sec.  5021.  SFoote  v.  Sprague,   13  Kan.  155. 
'Fleming  v.  Kirkendall,  31  O.  S.    See  Stephenson  v.  Reider,  2  W.  L.  B. 

56a  335. 

«Giddings  v.  Barney,  31  O.  S.  80.  'Hardinger  v.  Zeigler,  6  W.  L.  B. 

For  form,  see  sees.   583,   584.     Tlie  326. 

court  may  order  an  execution  for  any  8  Wood  v.  Stanberry,  21  O.  S.  142. 

deficiency  after  the  property  is  ex-  9  Bank  v.  Fisk.  2  W.  L.  M.  543. 

hausted.    Giddings  v.  Barney,  supra.  lo  Conn  v.  Rhodes.  26  O.  S.  644. 

Personal  service  must  be  had.    Buck-  H  Larimer  v.  Ciemmer,  31  O.  S.  499. 
heimer  v.  Alsdorf.  2  W.  L.  B.  266. 


524  FORECLOSURE    OF   MORTGAGES.  [§  574. 

although  an  averment  that  a  note  was  duly  executed  and  de- 
livered by  the  defendant  to  plaintifif,  and  that  there  is  due 
thereon  a  certain  amount,  is  a  suflBcient  allegation  of  owner- 
ship.^ But  where  an  action  is  brought  by  one  who  has  ac- 
quired title  to  a  mortgage  by  virtue  of  attachment  proceedings, 
he  should  plead  all  necessary  facts  showing  his  title.-  The  action 
partaking  of  the  nature  of  an  equitable  proceeding,  the  plaint- 
iff may  attach  interrogatories  to  his  petition.^  But  where  he 
desires  to  ascertain  the  rate  of  interest  on  a  claim  of  a  defend- 
ant prior  mortgagee,  the  petition  must  contain  an  allegation 
that  the  mortgaged  property  is  not  sufficient  to  pay  both  mort- 
gages before  he  can  interrogate  as  to  the  rate  of  interest.* 
There  can  be  no  doubt  as  to  the  right  to  join  an  action  on  the 
note  with  an  action  to  foreclose.*  A  mortorao^e  cannot  be  fore- 
closed  by  piece-meal  by  selling  only  a  portion  of  the  premises 
which  it  covers.  If  this  course  is  pursued  by  the  mortgagee, 
he  waives  the  lien  on  the  remaining  property.^  In  a  suit  by 
a  judgment  creditor  to  enforce  the  same  against  real  estate 
upon  which  there  is  a  mortgage,  the  holder  of  the  mortgage 
being  a  party  defendant  who  sets  the  same  up  by  answer, 
the  suit  will  be  dismissed  if  it  appears  that  the  debtor  has 
other  property  out  of  which  the  judgment  can  be  had.'  The 
assignee  of  a  note  and  mortgage  cannot  maintain  a  personal 
action  on  the  assignor's  guaranty  of  the  collectibility  of  the 
note,  made  at  the  time  of  assigning  the  same,  without  resort- 
ing to  the  mortgage.*  The  petition  must  contain  an  averment 
that  the  debt  is  due  at  the  time  the  action  is  commenced.* 
And  it  must  also  be  averred  that  the  mortgage  was  duly  en- 
tered of  record,  althouofh  it  is  said  that  such  an  alleoration  is 
immaterial  as  between  the  mortojacror  and  mortcraccee.'® 

Sec.  5<4.  Averments  as  to  liens. —  It  has  been  held  that  an 
averment  that  a  defendant  has  or  claims  to  have  a  lien  upon 
or  interest  in  the  premises,  the  nature  of  which  is  not  known 

1  Sommers  v.  Hawkins,  1  Clev.  Rep.        '  Lee  v.  Harback.  2  W.  L.  M  527. 
210 ;  ante,  sec.  50.  p.  50,  n.  7.  8  Timmerman  v.  Howell,  3  O.  C.  C. 

2  Alsdorf  V.  Reed,  45  O.  S.  653.  27. 

!>.<lnfe,  sec.  60.  s*  Smith   t.  Holmes,  19  N.  Y.  271 ; 

*  Devore  v.  Dinsmore,  4  W.  L.  M  Wattson  v.  Thibou.  17  Abb.  Pr.  184. 
144     See  sec.  60,  ayite.  i"  St.  Mark's  Fire  Ins.  Co.  v.  Harris. 

!>  Ante,  sec.  24  13  How.  Pr.  95;  Budd  v.  Kramer,  14 

*  Mascarel  v.  Raffour,  51  Cal.  242.        Kan.  101. 


§  575.]  FORECLOSURE    OF   MORTGAGES.  525 

to  plaintiff,  does  not  state  any  fact   which  a  defendant  lien- 
holder  is  bound  to  answer,  and  in  the  absence  of  any  other 
averment  or  pleading  by  the  defendant,  a  court  cannot  render 
a  decree  quieting  or  barring  the  claim  of  such  a  defendant ;  a 
decree  made  upon  such  pleadings  would  be  a  nullity.'     With- 
out an  allegation  in  the  petition  in  some  way  controverting 
or  denying  the  validity  of  the  claim  of  a  defendant,  such  de- 
fendant may  assume  that  his  lien  is  paramount  to  plaintiff's, 
and  his  rights  are  not  therefore  affected  by  the  proceedings.' 
The  usual  allegation  made  in  such  cases,  which  has  been  ap- 
proved by  courts  and  writers  generally,  is:  "That  the  defend- 
ant G.  II.  has  or  claims  to  have  some  interest  in  or  lien  upoa 
the  said  real  property;  but  the  same,  whatever  it  may  be,  is 
subject  to  the  lien  of  the  said  mortgage  of  plaintiff."  ^     There 
must  be  an  allegation  showing  that  the  defendant's  claim  is 
inferior  to  that  of  the  plaintiff.     The  most  usual  allegation  in 
Ohio  probably  is,  "  that  the  defendant  A.  B.  has  or  claims  to 
have  some  interest  or  lien  upon  the  property  hereinbefore  de- 
scribed, which  plaintiff  asks  he  may  be  required  to  set  forth 
or  be  forever  barred  from  asserting   the   same."*     The  su- 
preme court  has  recently  held,  however,  that  an  averment 
that  a  co-defendant  has  or  claims  to  have  some  interest  in 
or  claim   upon  the  mortgaged  premises,  and  advises  him  that 
his  claim  or  lien  will  be  barred  if  he  fails  to  appear  and  dis- 
close it,  is  sufficient  without  averring  the  character  of  the 
interest.'    The  doctrine  of  this  case,  which  was  a  well-consid- 
ered one,  is  not  m  entire  harmony  with  the  strict  rule  an- 
nounced by  other  cases  considered  in  this  section,  and  must 
necessarily  supersede  all  others. 

Sec.  575.  Allegation  of  demand. —  Whether  or  not  a  peti- 
tion to  foreclose  a  mortgage  should  aver  a  demand  for  pay- 

iLaughlin  V.  Vogelsong,  5  0.  C.  C.  <The    form    in   Swan's  P.  &  P., 
407;  Spoors  v.   Coen,  44  O.  S.  497.  pp.  415,   416,  No.  142,  has  been  ex- 
See  Blaudin  v.  Wade,  20  Kan.  254;  pressly  disapproved  by  courts  in  other 
Delahay  v.  Goldie,  17  Kan.  263 ;  Short  states. 
V.  Nooner,  16  Kan.  220.  swinemiller  v.  Laughlin,  51  O.  S. 

2Laughlinv.  Vogelsong,  5  O.  C.  C.     ;  31  W.  L.  B.  370;  Anthony  v. 

407 ;  Strobe  v.  Downer,  13  Wis.  11 ;  Nye,  30  Cal.  401 :  Poett  v.  Stearns,  28 

Lewis  V.  Smith,  9  N.  Y.  500.  CaL  266. 

3Drury  v.  Clark,  16  How.  Pr.  424; 
Frost  V  Koon,  30  N.  Y.  428. 


626  FORECLOSnBE    OF   MORTGAGES.  [§  576. 

ment  depends  entirely  upon  the  conditions  or  the  defeasance 
clause  of  the  mortgage.  If  it  provides  that  the  note  thereby 
secured  shall  be  paid  within  a  certain  time  after  demand  is 
made,  then  demand  becomes  a  condition  precedent  to  the 
right  to  foreclose,  and  the  petition  must,  therefore,  contain 
an  allegation  that  a  demand  has  been  duly  made.^  But  in  the 
absence  of  any  such  stipulation  in  the  mortgage  itself,  or  if  it 
be  provided  merely  that,  *'•  if  the  mortgagor  shall  pay  or  cause 
the  note  to  be  paid,"  then  a  demand  of  payment  is  not  a  nec- 
essary condition  to  a  right  of  action  upon  the  mortgage.^  A 
demand  in  such  a  case  which  is  made  by  an  agent  of  the 
owner  of  the  note,  whose  agency  is  denied,  cannot  be  estab- 
lished by  the  mere  possession  of  the  note  by  such  agent.' 
Where  the  provisions  of  the  note  secured  by  mortgage  are 
such  that  the  same  is  payable  within  a  certain  number  of  days 
after  demand,  the  mortgage  cannot  be  foreclosed  unless  a  de- 
mand of  payment  is  first  made. 

Sec.  576.  Stipulations  as  to  defaults  in  payment  of  in- 
stalments and  interest. —  Interesting  questions  have  arisen 
upon  the  construction  of  stipulations  in  mortgages  which  are 
out  of  the  usual  form;  as.  for  example,  stipulations  as  to  de- 
faults in  the  payment  of  notes,  taxes  and  other  conditions. 
These  stipulations  are  made  entirely  in  the  interest  of  the 
mortgagee  and  relate  solely  to  the  remedy  to  be  pursued  by 
him.*  Where  it  is  provided  in  a  mortgage  that  if  an  instal- 
ment of  interest  or  principal  is  not  paid  at  the  time  stipu- 
lated, the  holder  thereof  may  elect  to  declare  the  whole  debt 
due,  an  election  by  the  holder  must  precede  an  action  to  fore- 
close.* Or  if  the  mortgage  contain  a  condition  that,  in  case  of 
default  in  the  payment  of  any  one  instalment,  the  whole 
debt  shall  thereby  become  due,  the  right  to  foreclose  will  ac- 
crue at  once  upon  such  default  before  all  of  the  instalments 

1  Insurance  Co.  v.  Curtis,  35  O.  S.    v.  Wooster,  9  O.  S.  517.    See  Bank  v. 
343 ;  Bolman  v.  Lohman,  79  Ala.  63 ;     Price,  8  O.  S.  299. 

Insurance  Co.  v.  Jones,  35  O.  S.  351.        3  insurance  Co.  v.  Jones,  85  O.  Si 

2  Insurance  Co.  v.  Curtis,  35  O.  S.     351. 

357.  That  a  right  of  action  will  lie  « McClelland  v.  Bishop,  43  O.  SL 
on  a  note  without  demand  is  settled     113. 

in  Hill  V.  Henry,  17  O.  9;  Darling        5  Randolph  v.  Middleton,  26  N.  J. 

Eq.  543. 


§  576.]  FORECLOSURE    OF   MORTGAGES.  527 

are  due.  This  is  the  well-settled  practice.^  Where  a  mort- 
gage provides  that,  after  the  interest  thereon  falls  due  and  re- 
mains unpaid,  the  holder  may  elect  that  the  whole  debt  shall 
thereby  become  due,  he  cannot  be  compelled,  after  making 
such  an  election,  to  accept  the  interest  and  waive  the  stipula- 
tion.2  It  may  be  provided  in  a  mortgage  that  the  same  shall 
become  due  upon  failure  to  pay  taxes  or  interest,  in  which 
case  the  right  to  foreclose  accrues  upon  a  breach  of  the  condi- 
tion.' A  right  to  foreclose  has  been  held  to  exist  where  there 
is  a  default  in  the  payment  of  interest,  even  before  the  prin- 
cipal becomes  due.*  Where  it  is  stipulated  that  the  mortgage 
is  not  to  be  foreclosed  until  the  property  of  the  makers  of  a 
note  is  exhausted,  and,  after  judgment  has  been  rendered  on 
the  note,  it  appears  that  they  have  no  property  subject  to 
execution,  it  cannot  be  said  that  the  creditor  is  then  bound  to- 
exhaust  the  equities  of  the  judgment  debtors  before  foreclos- 
ing the  mortgage.^  In  stating  a  case  where  the  stipulation 
in  the  mortgage  is  that  the  mortgagee  may  elect  to  declare 
the  whole  debt  due  upon  default  in  the  payment  of  an  instal- 
ment or  in  interest,  the  petition  should  set  forth  the  default, 
and  aver  that  in  consequence  thereof  the  plaintiff  elects  ta 
declare  the  whole  debt  due.^  Where  the  action  is  to  foreclose 
a  mortgage  for  a  failure  to  pay  interest  on  a  note  where  the 
note  itself  is  not  due,  but  becomes  due  during  the  pendency 
of  the  action,  a  supplementary  petition  may  be  tiled  to  hav^e 
the  amount  due  on  the  subsequent  note  determined.^ 

iBushfield  v.  Meyer,  10  O.  S.  334;  spoweshiek  Co.    v.    Dennison,  36 

King  V.  Longworth,  7  O.  (Pt.  2),  585  la.   244 :    s.    C,    14    Am.   Rep.    521 ; 

(1836);  McClelland  V.  Bishop,  42  O.  S.  Buchannan  v.  L.  Ins.  Co.,  96    Ind. 

113;  Goodman  V.  Railroad  Co.,  2  Disn.  510;    Stancliff   v.    Norton,    11   Kan. 

ISO ;  Lansing  v.  Capron,  1  Johns.  Ch.  218. 

617;  Bank  v.  Strong,  2  Paige,  303;  *  Butler  v.  Blackman,  45  Conn.  159 ; 

Fisher  V.  Millmine,  94  111.328;  Ester-  Dederick  v.  Barber,  44  Mich.  19.   See 

brook  V.  Moulton,  9  Mass.  298 ;  Dean  Goodman  v.  Railroad  Co.,  2  Disn.  176. 

V.  Ridgeway,    82    la.  757;  Vieno  v.  5Riblet  v.  Davis,  24  O.  S.  114. 

Gibson,  20  S.  W.  Rep.  717  (Tex.,  1892) ;  «  Harper  v.  Ely,  56  III.  179.     Notice 

Grattan  v.  Wiggins,  23  Cal.  16.     In-  of  election   is  necessary.     Jones  on 

stalraents  falling  due  subsequent  to  Mortgages,    sec.    1182;    Johnson    v. 

the  suit  may  be  brought  in.     Hig-  Van  Velser,  43  Mich.  208. 

gins  V.  West,  5  O.  554.  '  Glenn   v.    Hoflfman,  2  W.    L.  j\L 

2  Malcolm  v.  Allen,  49  N.  Y.  448;  599.  This  was  held  in  an  old  supreme 

Van  Doren  v.  Dickinson,  33  N.  J.  Eq.  court  case  to  be  unnecessary.    Drake 

388.  T.  Bracket,  1  W.  L.  J.  895. 


528  FORECLOSURE    OF    MORTGAGES.  [§§  577,  578. 

Sec.  577.  Litigating  paramount  titles. —  In  states  where 
the  code  is  ado[)ted,  the  old  practice  that  questions  of  para- 
mount or  adverse  title  cannot  properly  be  litigated  in  fore- 
<5losure  proceedings  is  adopted.^  This  practice  has  been 
doubted,  on  the  other  hand,  in  a  state  whose  jurisprudence  is 
similar  to  that  of  Ohio,  inclining  rather  to  the  view  that  the 
consideration  of  all  questions  of  adverse  titles  in  foreclosure 
proceedings  is  more  in  harmony  with  the  general  policy  of  the 
code,  whose  object  is  to  have  the  whole  subject  litigated  in  a 
single  action.- 

Sec.  578.  Petition  of  foreclosure  l)j  the  original  mort- 
gagee —  Simple  form. — 

I.  The  plaintiff,  S.  B.  W.,  for  a  cause  of  action  says  that  on  the 

day  of ,  18 — ,  the  said  defendants  made  and  delivered 

to  the  plaintiff  their  promissory  note  of  that  date,  a  copy  of 
which  is  hereto  attached,  marked  "  Exhibit  A  "  [or,  a  copy  of 
which  with  all  the  indorsements  thereon  is  as  follows] : 

The  plaintiff  says  that  he  is  still  the  owner  and  holder  of 
said  note;  that  there  are  no  indorsements  thereon;  and  that 
there  is  due  him  from  said  defendants,  upon  said  note,  the  sum 

of  dollars  and  cents,  with per  cent,  interest 

thereon  from . 

II.  For  a  second  cause  of  action  the  plaintiff  adopts  so  much 
of  the  first  cause  of  action  as  is  contained  between  the  words, 
" "  m  the  first  line,  to  and  including  the  words  " 

"  in  the line  thereof,  the  same  as  if  fully  rewritten 


herein,  and  says  that  said  defendants,  on  the day  of 

18 — ,  to  secure  the  pa^'ment  of  said  promissory  note  set  forth 
in  the  first  cause  of  action  herein,  executed  and  delivered  to 
the  plaintiff  their  certain  mortgage  deed,  and  thereby  con- 
veyed to  the  plaintiff,  his  heirs  and  assigns,  the  following  de- 
scribed lands  and  tenements,  to  wit:  [Description  of  i)roperty.'\ 

The  said  mortgage  deed  contained  a  condition,  in  substance, 
that  if  the  said  defendants  should  pay  or  cause  to  be  paid  the 
said  promissory  note  to  the  plain!  iff,  his  heirs  or  assigns,  when 
the  same  became  due,  with  the  interest,  then  said  mortgage 
deed  should,  become  void,  otherwise  to  be  and  remain  in  full 
force  and  virtue. 

The  plaintiff  says  that  by  reason  of  the  non-payment  of  said 

iSan  Francisco  v.  Lawton,  18  Cal.  Pelton  v.  Ferrin.  18  Wis.  222;  Pome- 

465;  Ciagan  v.  Miner,  6  C.  L.  J.  354;  roy's  Code  Rein.,  sec.  334. 

Banning  V.  Bradford,  21  Minn.  308;  2  Bradley  v.  Parkhurst,  20  Kan.  462. 

McCormick  v.  Wilson,  25   111.  274;  See,  also,  Bayer  v.  Cockerill,  3  Kan. 

Eagle  F.  Ins.  Co.  v.  Lent,  6  Paige,  282 ;  chapter  on  Joinder  of  Actions. 
635 ;  Corning  v.  Smith,  6  N.  Y.  82 ; 


§  570.]  FORECLOSURE  OF  MORTGAGES.  529 

promissory  note,  and  the  interest  due  thereon,  the  said  mort- 
gage deed  has  become  absolute. 

That  on  the day  of ,  18 — ,  at o'clock  — .  M., 

the  said  mortgage  deed  was  delivered  to  the  recorder  of  said 

county  for  record,  and  was  by  him  dul\'  recorded  on  the 

day  of  said  month  and  year,  in  volume of  the  record  of 

mortgages,  pages and ,  of  said  county. 

Wherefore  the  plaintiff  prays  that  the  court  may  deter- 
mine the  amount  due  him  upon  said  promissory  note  and 
render  judgment  therefor;  that  said  mortgage  deed  may  be 
foreclosed,  the  said  premises  ordered  to  be  sold,  and  the  pro- 
ceeds applied  in  payment  of  said  debt,  and  for  all  necessary 
equitable  relief.       "  E.  W.  T., 

Attorney  for  Plaintiff. 

Note.—  Adopted  from  Niles  v.  Parks,  49  O.  S.  370. 

Appraisement  and  Sale. —  After  property  has  been  twice  offered  and  not 
sold,  a  new  appraisement  may  be  ordered,  upon  motion  of  eithpr  party.  But 
after  it  has  been  three  times  offered,  the  court  is  not  authorized  to  fix  an 
amount  for  which  it  can  be  sold.     Brown  v.  Insurance  Co..  6  O.  C.  C.  62. 

Record. —  All  mortgages  take  effect  from  time  of  delivery  to  recorder. 
Magee  v.  Beatty,  8  O.  396 ;  Mayham  v.  Combs,  14  O.  438 :  White  v.  Denman, 
1  O.  S.  110.  Mortgages  mav  be  placed  on  record  after  deatli  of  mortgagor. 
Bank  v,  Dondna,  3  W.  L.  B".  789:  Gill  v.  Pinney,  12  O.  S.  38.  Mistakes  of 
recording  officer  will  not  affect  the  validity  of  the  mortgage.  Stanbury  v. 
O'Neil,  11  W.  L.  B.  260 ;  Brown  v.  Kirkman,  1  O.  S.  116.  the  lien  of  a  sec- 
ond mortgage  first  recorded  is  preferred.  Stansell  v.  Roberts,  13  O.  148. 
An  unrecorded  mortgage  or  equitable  assignment  is  good  as  between  the 
parties,  but  as  to  thud  parties  operates  only  from  date  of  record.  Fosdick 
v.  Barr.  3  O.  S.  471 ;  Sidle  v.  Maxwell,  4  O.  S."  236 ;  Stewart  v.  Hopkins,  30  O.  S. 
502 ;  Snyder  v.  Betz,  2  O.  C.  C.  484.  Notice  of  prior  unrecorded  mortgage 
will  not  postpone  the  second  mortgage.  Stansell  v.  Roberts,  13  O.  148; 
Mayham  v.  Combs,  14  O.  428.  Mortgages  have  priority  of  lien  in  the  order 
of  delivery  to  recorder.  Bercow  v.  Cockrill,  20  O.  S.  163.  A  mortgage  re- 
corded in  deed  record  is  operative  against  subsequent  purchaser  without 
actual  knowledge.     Smith  v.  Smith,  13  O.  S.  532. 

Sec.  579.  Petitiou  where  another  party  claims  to  own  a 
portion  of  the  premises,  and  against  other  mortgagees. — 

The  said  plaintiff,  M.  J.  S.,  complains  of  the  said  defendant, 

D.  S.  B.,  for  that  the  said  defendant,  on  the  -: day  of , 

18 — ,  at  D.,  Ohio,  made  his  promissory  note  in  writing  of  that 
date,  and  then  and  there  delivered  the  same  to  the  plaintiff, 
and  thereby  promised  to  pay  to  the  said  M.  J.   S.,  or  order, 

— —  dollars  and  cents,  one  year  after  the  date  thereof, 

with  interest  at per  cent,  per  annum  from  date  until  paid, 

which  period  has  elapsed  ;  yet  the  said  D.  S.  B.,  defendant,  has 
not  paid  said  note,  nor  the  interest  thereon,  nor  any  part 
thereof,  and  there  are  no  indorsements  thereon ;  a  copy  of 
which  note  is  hereto  attached  and  filed  as  an  exhibit  [or,  which 
is  as  follows,  to  wit].     There  is  now  due  to  the  plaintiff  from 

said  D.  S.  B.  thereon  the  sum  of  % ,  with  interest  at  

per  cent,  from ,  18 — . 

34 


530  rOEECLOSUKE    OF   MORTGAGES.  [§  579. 

[^.  Formal  averments  for  second  cause  of  action  as  in  ante, 
sec.  578.] 

The  said  plaintiff  further  complains  of  the  said  T>.  S.  B.,  for 
that  the  said  defendant,  in  order  to  secure  the  payment  of 
said  note  and  the  interest  thereon,  according  to  the  tenor  and 
effect  thereof,  executed  and  delivered  to  plaintiff  his  certain 

mortgage  deed  on  the  said day  of ,  18 — ,  and  thereby 

conveyed  to  the  said  plaintiff  in  fee-simple,  her  heirs  and  as- 
signs, the  following  described  premises,  to  wit :  [Description 
of  property.'] 

Said  mortgage  deed  had  a  condition  thereunder  written  as 
follows,  to  wit:  [Copy  condition  or  substance.] 

The  said  mortgage  deed  was  left  with  the  recorder  of  D. 

county,  Ohio,  to  be  by  him  recorded,  at  o'clock  — .  M., 

,  18 — ,  and  was  recorded ,  18 — ,  in county,  rec- 
ord of  mortgages,  volume ,  page 


There  is  due  the  said  plaintiff  from  the  said  defendant, 
D.  S.  B.,  on  the  note  and  mortgage  in  the  petition  described, 

the  sum  of  $ ,  with  interest  at per  cent,  from , 

18 — ,  which  the  said  defendant  has  failed  to  pay  according  to 
the  tenor  and  effect  thereof,  by  reason  whereof  said  mort- 
gage deed  has  become  absolute. 

The  said  L.  B.,  defendant,  at  the  time  said  note  and  mort- 
gage Avere  given,  claimed  to  own  the  undivided  one-fourth  of 
said  premises,  and  now  claims  some  interest  in  said  premises 
by  way  of  mortgage,  the  exact  nature  of  which  plaintiff  is 
ignorant,  and  she  therefore  asks  that  he  be  required  to  answer 
and  set  forth  his  claim  or  be  forever  barred.^ 

The  said  defendants,  A.  C.  and  N,  C,  his  wife,  claim  some 
interest  in  said  real  estate,  the  exact  nature  of  which  plaintiff 
is  ignorant,  and  she  therefore  asks  that  they  may  be  required 
to  answer  and  set  forth  their  claim  or  be  forever  barred. 

Wherefore  the  plaintiff  prays  that  an  account  may  be  taken 
by  the  court  of  the  amount  due  the  plaintiff  from  said  defend- 
ant, D.  S.  B.,  on  said  note  and  mortgage,  and  that  the  said 
D.  S.  B.  be  ordered  to  pay  the  amount  so  found  due  by  the 
court  within  a  short  time  to  be  named  by  the  court,  and  in 
■default  thereof  that  the  court  order  said  undivided  one-fourth 
of  said  premises,  or  such  part  thereof,  if  less  than  the  amount 
stated  in  said  mortgage  deed,  owned  by  said  D.  S.  B.,  to  be 
appraised,  advertised  and  sold  according  to  law,  and  the  pro- 
ceeds applied  to  the  payment  of  the  amount  so  found  to  be 
due  by  the  court,  and  for  such  other  and  further  relief  as  the 
equity  of  the  case  may  require.  J.  H., 

Attorney  for  Plaintiff. 

Note.— From  Benton  v.  Shafer,  47  0.  S.  117 
I  See  ante,  sec.  574. 


■I 


I  580.]  FORECLOSURE  OF  MORTGAGES.  531 

Sec.  580.  Petition  by  executor  of  mortgagee  against 
widow  and  heirs  of  mortgagor  for  foreclosure  merely. — 

That  on  the  day  of ,   IS—,  W.  B.  died  testate 

leaving  a  will  which  was  duly  probated  by  the  probate  court 

of county  on  the  day  of ,  18 — ,  and  the  said 

plaintiff  was  duly  appointed  and  qualified  as  the  executor  of 
the  said  last  will  and  testament  of  said  deceased,  and  is  still 
qualified  and  acting  as  said  executor. 

That  on  the day  of ,  18 — ,  one  J.  W.  B.  executed 

and  delivered  to  the  said  W.  B.  his promissory  notes  of 

that  date,  being  for  a  balance  of  purchase-money  of  the  tract  of 
land  hereinafter  described,  each  of  said  notes  being  for  the 
sum  of  $ ,  copies  of  which  are  as  follows:  [Coj)y.'] 

2,  \_Formal  averments.']  Plaintiff  further  says  that,  to  se- 
cure the  payment  of  the  said  notes  and  the  interest  thereon 
as  it  should  become  due,  the  said  J.  W.  B.  and  the  defendant 

S.  F.  B.,  his  wife,  on  the  said day  of ,  18 — ,  executed 

and  delivered  to  the  said  W.  B.  their  mortgage  deed,  and 
thereby  conveyed  to  the  plaintiff's  said  testator,  W.  B.,  his 
heirs  and  assigns,  the  following  described  lands  and  tenements 

situated  in  the  county  of and  state  of  Ohio,  to  wit :  \_De- 

scription  of  ■premises^ 

The  condition  contained  in  said  deed  was  in  substance  that 
if  the  said  J.  W.  B.  should  pay  the  notes  according  to  the 
tenor  thereof  the  said  deed  should  be  void,  otherwise  to  be 
and  remain  in  full  force  and  virtue  in  law. 

Plaintiff  further  says  that  since  the  execution  of  said  deed 
and  notes  the  said  J"^  W.  B.  departed  this  life  intestate,  leav- 
ing as  his  sole  heirs  and  representatives  the  defendant  S.  F.  B., 
his  widow,  and  the  defendant  M.  B.,  an  infant  child  under  the 
age  of  twelve  years. 

On  the  day  of ,  18 — ,  at  o'clock  — .  M.,  the 

said  mortgage  was  delivered  to  the  recorder  of county 

to  be  by  him  entered  for  record  and  was  recorded  in  volume 
of  mortgages  at  pages and  following. 

The  said  deed  has  become  absolute.  There  is  due  and  un- 
paid on  the  second  of  said  notes  the  sum  of dollars  with  in- 
terest thereon  from  the  day  of ,  18 — .     The  third 

mentioned  note  is  due  and  unpaid,  to  wit,  the  sum  of 

dollars,  with  interest  thereon  from  the day  of ,  18 — , 

at  the  rate  of  per  cent,  per  annum  payable  annually. 

There  is  due  and  unpaid  for  annual  interest  on  the  whole  of 

said  notes  the  sum  of dollars  with  interest  thereon  from 

the day  of ,  IS — , 

There  is  also  due  as  the  annual  interest  on  the  sum  of 

dollars,  the  principal  sum  of  fourteen  of  said  notes,  the  sum 

of dollars,  with  interest  thereon  at  the  rate  of per 

cent,  from  the day  of ,  18 — .     There  is  also  due  on 


532  FORECLOSURE  OF  MORTGAGES.  [§  581. 

said  principal  sum  the  interest  which  became  due  on  the 


day  of  ,  18 — ,  to  wit,  the  sum  of  dollars,  together 

with  interest  thereon  at  the  rate  of per  cent,  per  annum, 

less  what  interest  may  be  found  due  on  second  and  third  notes 
aforesaid. 

The  plaintiff  therefore  prays  that  there  be  an  account  of 
the  amount  due  upon  the  several  notes  mentioned  herein  and 
the  interest  accrued,  that  said  mortgage  be  foreclosed,  the 
said  premises  ordered  to  be  sold,  that  an  order  of  sale  issue 
to  the  sheriff  to  sell  the  said  premises  as  upon  execution,  and 
for  such  other  and  further  relief  as  may  be  proper  in  the  prem- 
ises. B.  B.  K.,  Attorney. 

Sec.  581.  Petition  where  mortgage  was  taken  upon  fraud- 
ulent representations  that  there  were  no  other  mortgages. — 

The  plaintiff  says :  1st.  That  on  the day  of ,  18 — , 

the  defendant  R.  M.  executed  to  him  his  two  certain  promis- 
sory notes  of  that  date,  copies  of  each  of  which  are  hereto  at- 
tached, marked  Exhibits  A  and  B  respectively  [or,  a  copy  of 
which  notes  is  as  follows] :  [Copy.] 

There  is  due  plaintiff  upon  said  notes  the  sum  of  $ with 

interest  from . 

[Formal  averments  as  in  ante,  sec.  578.'] 

2d.  On  the day  of ,  IS — ,  the  defendants  R.  M.  and 

C.  M.,  his  wife,  to  secure  the  payment  of  said  two  notes  and 
interest  thereon,  executed  and'  delivered  to  plaintiff  their 
mortgage  deed  and  thereby  conveyed  to  this  plaintiff,  his 
heirs  and  assigns,  the  following  lands  and  tenements,  situate  in 

the county  of and  state  of  Ohio,  and  described  as 

follows :  [DesGription  of  lands.] 

3d.  The  condition  contained  in  said  mortgao^e  deed  was  in 

substance  that  if  the  said should  well  and  truly  pay 

the  aforesaid  promissory  note  with  interest  thereon,  according 

to  the  tenor  and  effect  thereof,  to  the  said ,  his  heirs 

and  assigns,  then  said  deed  to  be  void,  otherwise  to  be  and 
remain  in  full  force  and  virtue  in  law  forever. 

4th.  On  the day  of ,  18 — ,  at o'clock  —  M., 

said  mortgage  deed  was  filed  in  the  office  of  the  recorder 

of county,  Ohio,  to  be  by  him  entered  on  record,  and  on 

the day  of ,  18 — ,  the  same  was  recorded  as  required 

by  law. 

Plaintiff  says  that  as  between  him  and  all  the  defendants, 
except  B.,  B.  &  C,  his  is  the  first  mortgage  and  lien  upon  said 
described  premises  and  should  be  paid  out  of  the  proceeds 
arising  from  the  sale  of  the  same. 

That  sometime  in ,  18 — ,  the  defendant  J.  M.  executed 

and  delivered  to  the  defendants  R.  and  C  M.  a  warranty 
deed  for  said  described  premises,  and  at  the  time  the  plaintiff 


§  582.]  FOKECLOSTJEE    OF   MORTGAGES.  533 

took  his  said  mortgage  on  said  premises,  said  J.  M.  represented 

to  this  plaintiff  that  there  was  not  an}^  lien  or  mortgage  on  the 
same,  and  plaintiff,  relying  on  the  statement  so  made  by  J.  M. 
with  reference  to  the  same,  forbore  to  make  an  examination 
of  the  record,  and  was  induced  to  take  his  said  mortgage  on 
said  premises  by  reason  of  said  J.  M/s  said  representations 
that  said  premises  were  entirely  free  and  clear  of  all  incum- 
brances, when  in  fact,  plaintiff  says,  he  is  advised  and  believes 
that  there  was  then  and  still  is  a  mortgage  on  the  same  for 

about  I to  the  defendants  B.,  C.  &  C,  and  plaintiff  says 

he  first  learned  that  said  representations  of  said  J.  M.  were 
untrue  on ,  IS — , 

Plaintiff  says  the  defendant  H.  S.  IT.  has  a  mortgage  on 
said  premises,  or  a  note  secured  by  the  mortgage  held  by  the 
defendant  J.  M.,  but  he  says  that  said  note  and  the  security 
for  it  is  the  sole  and  separate  property  in  her  own  right  of  the 
said  H.  S.  H. 

The  defendants  E.  and  R.  S.  W.  have  or  claim  to  have  some 
lien  in  or  upon  said  lands  and  tenements,  but  whatever  claim 
they  or  either  of  them  have  is  subsequent  to  that  of  plaintiff, 
and  should  be  postponed  to  plaintiff's,  but  the  exact  nature  and 
amounts  of  their  claims  plaintiff  is  not  advised  of,  and  asks 
proof  of  the  same. 

Plaintiff  asks  that  his  said  mortgage  may  be  foreclosed,  the 
said  premises  ordered  to  be  sold,  and  the  proceeds  arising  from 
such  sale  applied  to  the  payment  of  his  debt,  and  that  execu- 
tion be  awarded  for  any  balance,  and  for  such  other  and  fur- 
ther relief  as  he  may  be  entitled  to  in  the  premises. 

Sec.  582.  Petition  against  defendant  holding:  tax-title 
deed  claimed  to  be  void,  and  defeudaut  claiming  premises 
under  land  contract. — 

First  cause  of  action: 

I.  The  said  plaintiff  F.  J.  complains  of  the  said  defendant 
J.  H.  H.  for  this:  that  there  is  due  him  from  said  defendant 
on  a  promissory  note,  a  copy  whereof  with  all  in- 
dorsements thereon  is  hereto  attached,  marked  *'  Exhibit  A," 

and  made  a  part  hereof,  the  sum  of  dollars,  which  sum 

plaintiff  claims  of  said  defendant  with  interest  thereon  at  the 

rate  of per  cent,  per  annum  from  the  dav  of , 

18—. 

II.  That  to  secure  said  promissory  note  the  said  defendant 
J.  E[.  H.,  on  the  day  of  ,  18 — ,  executed  and  de- 
livered to  this  plaintiff  his  mortgage  deed  of  that  date  and 
thereby  conveyed  to  this  plaintiff  the  following  described 
premises,  lands  and  tenements,  to  wit :  Situated  in  the  city  of 

,  county  of ,  and  state  of  Ohio,  and  known  as  [descrihe 

propeHy\. 


634  FORECLOSURE    OF   MORTGAGES.  [§  582, 

On  the day  of  ,  18 — ,  at o'clock  — .  M.,  this 

plaintiff  duly  delivered  said  mortgage  deed  to  the  recorder  of 
said  county  of for  record,  and  the  same  was  by  said  re- 
corder duly  recorded  in  volume  at  page    of  the 

records  of  said  county. 

Said  deed  had  a  condition  thereunder  written  that  if  said 

,  his  heirs,  assigns,  executors  or  administrators,  should 

well  and  truly  pay  said  promissory  note  according  tothe  tenor 
thereof  to  the  said  plaintiff,  his  heirs  or  assigns,  then  said  deed 
to  be  void,  otherwise  to  remain  in  full  force  and  virtue  in  law. 

The  condition  of  said  mortgage  deed  hath  been  broken  and 

the  same  hath  become  absolute  for  this :  that  the  said 

and  his  assigns  have  failed  to  pay  said  note  according  to  the 
tenor  thereof,  but  so  to  do  have  failed  and  refused,  and  there 
is  now  due  plaintiff  on  said  note  and  mortgage  the  sum  of 

dollars,  which  sum  is  due  with  interest  at  the  rate  of 

per  cent,  per  annum  from  the day  of ,  18 — ,  and 

which  is  the  amount  due  after  giving  credit  for  all  payments 
and  the  proceeds  of  the  other  property  in  the  mortgage  de- 
scribed, and  is  the  first  lien  on  said  premises.  The  said  de- 
fendant M.  A.  H.,  wife  of  J.  H.  H.,  released  her  right  of 
dower  in  said  mortgage  deed. 

That  said ,  defendant,  claims  title  to  said  premises 

by  a  tax  deed,  but  plaintiff  says  that  the  sale  by  which  he  ac- 
quired title  was  defective  and  void";  that  the  advertisement  of 
the  property  for  sale  was  insufficient;  that  no  effort  was  made 
to  collect  said  tax  before  sale ;  that  no  suit  was  brought  to 
collect  said  tax,  and  that  the  tax  deed  is  thereby  defective 

and  void,  and  the  only  claim  that  the  said has  is  for 

the  sum  of  $ ,  with  interest  from ,  18 — ,  as  a  lien  upon 

said  premises. 

That  said  defendant claims  to  have  some  title  to 

said  premises  by  deed  from  J,  H.  H.,  but  the  same  is  subse- 
quent to  and  inferior  to  plaintiff's  claim. 

AVherefore  the  plaintiff  prays  that  said  {defendant  having 
tax  title']  and  [defendant  claiming  property  hy  land  contract] 
may  be  required  to  set  up  their  claims  to  said  premises  or  be 
forever   barred,  and    plaintiff   prays   judgment   against  said 

for  the  sum  of dollars,  with  interest  at  the 

rate  of per  cent,  per  annum  from ,  18 — . 

Plaintiff  prays  that  the  premises  in  the  petition  described 
may  be  ordered  to  be  sold  according  to  law  and  the  proceeds 
applied  to  the  payment  of  plaintiff's  claim  and  costs,  and  for 
such  other  and  further  relief  as  equitv  may  require. 

W.  &  S., 
Attorneys  for  Plaintiff. 

Note. —  From  Jaeger  v.  Hardy,  48  O.  S.  335. 


§  583.]  FORECLOSURE  OF  MORTGAGES.  535 

Sec.  583.  Petition  by  assignee  of  notes  and  mortgage 
against  maker  and  indorser,  for  personal  judgment  and 
foreclosure. — 

I.  Plaintiff's  cause  of  action  is  founded  upon  a  promissory- 
note  of  which  the  follo\vin>^  is  a  copy,  viz. :  \_Set  out  copy.'] 

The  following  are  the  only  credits  and  indorsements  thereon, 
viz. :  \_Set  out  credits  and  indorsements.^ 

On  the day  of ,  18—,  and  after  said  note  became 

due,  the  said  W.  D.  indorsed  and  delivered  the  same  to  these 
plaintiffs. 

The  defendants  E.  S.  and  C.  C.  S.  are  liable  on  said  note  as 
makers,  and  the  defendant  W.  D.  as  indorser.  There  is  due 
from  the  defendants  to  the  plaintiffs  on  said  note  the  sura  of 

dollars,  which  he  claims  with  interest  from  the day 

of  ,  18 — ,  payable  annually. 

II.  These  plaintiffs  furtlier  say  that  at  the  time  of  the  exe- 
cution of  the  notes  above  set  forth  and  to  secure  the  payment 
of  the  same  and  the  money  stated  therein,  the  said  C.  C.  S. 
and  E.  S..  his  wife,  did  by  their  mortgage  deed,  duly  executed 
and  delivered  to  the  said  W.  D.,  convey  to  the  said  defendant 
W.  D.,  his  heirs  and  assigns  forever,  the  following  real  estate 

situated  in  the  county  of ,  in  the  state  of  Ohio,  and_  in 

the  city  of ,  and  bounded  and  described  as  follows,  viz.: 

{Set  out  descri})tion.'\  To  have  and  to  hold  the  same  to  the 
said  W.  D.,  his  heirs  and  assigns,  and  to  his  and  their  own 
use  and  behoof  forever.  This  mortgage  deed  was  given  to 
secure  a  part  of  the  purchase-money  for  said  premises  as  is 
recited  therem  —  which  said  deed  of  conveyance  had  a  condi- 
tion thereunder  written  whereby  it  was  provided  that  if  the 
said  C.  C.  S.  and  E.  S.  shall  pay  or  cause  to  be  paid  unto  the 
said  W.  D.  their  seven  certain  promissory  notes  of  even  date 

herewith,  each  for  the  sum  of dollars,  payable  in 

years  respectively,  and  bearing  interest  at  the  rate  of per 

<3ent.  per  annum,  interest  payable  annually,  when  the  same 
became  due  and  payable  according  to  their  tenor  and  effect, 
then  these  presents  to  be  void,  otherwise  to  be  and  remain  in 
full  force  and  virtue. 

The  said  mortgage  deed  was  duly  left  with  the  recorder  of 

said   county  of  on  the  day  of ,  18 — ,  at 

()\;lock  — .  M.,  for  record,  and  was  by  him  duly  recorded  in  the 
rocord  of  mortgages  in  volume  — — ,  at  page ,  record  of 

lortgages  of  said county,  Ohio. 

That  when  said  promissory  notes  became  due  and  payable 

ucording  to  the  tenor  and  effect  thereof  as  set  forth  in  the 
lirst  and  second  cause  of  action  herein,  they  were  not  paid  or 

I  uy  part  thereof,  except  the  interest  thereon  for  the  first  year 
on  each  of  said  notes;  that  there  is  due  and  unpaid  on  each  of 
said  notes  all  interest  payable  annually  —  whereby  the  con- 


536  FORECLOSURE    OF    MORTGAGES.  [§  584. 

dition  of  said  mortgage  deed  has  been  broken  and  said  mort- 
gage deed  has  become  absolute. 

That  on  the day  of ,  18—.  the  said  W.  D.,  for  a 

valuable  consideration  in  hand  paid,  transferred  and  assigned 
all  his  right,  title  and  interest  in  said  mortgage  deed  to  these 
plaintiffs,  E.  G.  C.  and  A.  W.,  by  his  written  assignment  in- 
dorsed  on  said    mortgage,  which  said  assignment  was  duly 

entered  on  the  records  of county,  Ohio,  on  the day 

of ,  18 — .    These  plaintiffs  are  now  the  owners  and  holders 

of  said  mortgage  deed  by  reason  of  the  premises. 

Wherefore  the  plaintiffs  pray  judgment  against  the  said  de- 
fendants for  said  sum  of dollars,  with  interest  from , 

18—,  payable  annually,  on dollars,  and  also  on  a  failure 

to  pay  said  judgment  by  a  day  to  be  named,  said  premises  to 
be  appraised,  advertised  and  sold  as  upon  execution  and  the 
proceeds  applied  to  pay  said  judgment  so  to  be  rendered,  or  so 
far  as  said  proceeds  shall  go  in  paving  the  same. 

K.  &  AV., 
Attorneys  for  Plaintiffs. 

Note.  —  From  Kragle  v.  Diehl,  Supreme  Court,  No.  1652.  An  assignment 
of  the  debt  carries  with  it  the  security.     Swartz  v.  Leist,  13  O.  S.  419. 

Sec.  584.  Petition  by  mortgagee  against  pnicliaser  as- 
suming mortgage  —  Prayer  for  personal  judgment. — 

[Caption.'] 

Plaintiff  says  that  the  defendant  C.  D.,  on  the day  of 

,  18 — ,  made,  executed  and  delivered  to  him  his  promis- 
sory note  for  the  sum  of  S ,  and  thereby  promised  to  pay 

plaintiff  said  sum  of  | with  interest  thereon  at per 

cent.,  of  which  note  the  following  is  a  copy,  together  with  all 
credits   and    indorsements  thereon,  to  wit:    [Copy  of  note.'] 

There  is  due  upon  said  note  the  sum  of  | with  interest 

at per  cent,  from  . 

[Formal  averments.]  The  said  C.  D.,  at  the  time  of  the 
execution  and  delivery  of  said  note,  and  to  secure  the  pay- 
ment of  the  same,  executed  and  deliv^ered  to  plaintiff  a  mort- 
gage deed,  and  thereby  conveyed  to  said  plaintiff  the  follovy- 
ing  described  premises  situate  in  the  county  of  — —  and  in 
the  state  of  Ohio,  and  described  as  follows:  [Description  o/ 
premises.]  The  said  mortgage  deed  had  a  condition  there^ 
under  written  that  [copy  or  substance  of  conditions]. 

That  on  the  day  of ,  18—,  at o'clock,  said 

mortgage  deed  was  delivered  to  the  recorder  of  said  county 

for  record,  and  was  by  him  duly  recorded  on  the day  of 

.  18 — ,  in  volume of  record  of  mortgages  of  said 

county,  at  page . 

That  on  the day  of ,  18—,  the  said  C.  D.  sold  and 

conveyed  the  premises  hereinbefore  described,  and  upon  which 
said  mortgage  was  given,  to  E.  F. ;  and  it  was  thereupon  cove- 


1 


§  585.]  FORECLOSURE    OF   MORTGAGES.  537 

nanted  and  agreed  by  the  said  grantee  E.  F.,  by  a  special 
agreement  incorporated  in  the  conveyance  by  said  C.  D.  to 
E.  F.,  that  he  would  assume  and  pay  off  and  discharge  the  said 
note  and  mortgage  hereinbefore  set  forth  as  part  of  the  con- 
sideration for  said  conveyance,  a  copy  of  which  agreement  is 
as  follows:  [Copi/.] 

Plaintiff  says  that  said  defendants  C.  D.  and  E.  F.  have 
wholly  failed  to  pay  said  mortgage  indebtedness,  and  there  is 
therefore  due  from  said  defendant  E.  F.  as  principal  and  C.  D. 

as  surety  the  sum  of  $ ,  with  interest  from   the  day 

of ,  18 — ,  and  the  conditions  of  said  mortgage  deed  have 

been  broken  and  the  same  has  therefore  become  absolute. 

Wherefore  plaintiff  asks  judgment  against  the  said  defend- 
ants for  the  said  sum  of  * ,  with  interest  from ,  18 — ; 

that  said  mortgage  deed  be  foreclosed,  the  said  premises  sold 
and  the  proceeds  applied  in  payment  of  said  debt,  and  for  all 
proper  relief. 

l>iOTE.—  Assumption  of  mortgage:  A  pui-cliaser  assuming  one-half  of 
mortgage  debt  is  a  proper  party  and  is  liable  for  one-half  of  a  deficiency 
after  exhausting  tlie  property,  and  execution  may  be  issued  against  him. 
C.  S.  &  L.  Assn  V.  Kreitz,  41  O.  S.  143.  The  grantee  becomes  the  original 
debtor  and  the  mortgagor  his  surety.  Calvo  v.  Davies.  73  N.  Y.  215;  Klap- 
worth  V.  Dressier.  13  N.  J.  Eq.  Cifs.  c,  78  Am.  Dec.  69.  See  Teetors  v. 
Lamborn,  43  O.  S.  J.jo.  Each  successive  grantee  who  assumes  payment  of 
the  mortgage  also  becomes  a  surety.  Bank  v.  Goff,  13  R.  I.  516 :  Torrey  v. 
Ranks,  8  Paige,  G49.  On  question  of  assumption,  see  Brewer  v.  Maurer.  38 
O.  S.  543. 

Sec.  5S5.  Service. —  As  title  depends  upon  proper  parties 
and  proper  service,  great  care  should  be  exercised  in  this  re- 
spect so  that  all  defendants  may  be  brought  before  the  court. 
As  heretofore  stated,  all  minor  defendants  must  be  actually 
served  with  process.^  It  is  also  essential  that  the  precipe 
for  process  should  indicate  the  proper  indorsement  to  be 
made  upon  the  summons.  As  the  action  is  not  for  the  recov- 
ery of  money  only,  the  indorsement  merely  of  the  amount 
claimed  upon  the  summons  would  mislead  the  opposite  party 
into  the  belief  that  it  was  merely  an  action  for  money.-  Where 
the  action  is  for  the  sale  of  mortgaged  premises  and  for  per- 
sonal judgment,  no  indorsement  on  the  summons  as  to  the 
amount  or  nature  of  the  claim  is  necessary.''    Where  a  defend- 

1  See  ante,  sec.  570.  county,  Ohio,  indorsed  :  Prayer 

2Kious  V.  Kious.  3  W.   L.  M.  418.     for  judgment  f or  .| ,  foreclosure 

The  indorsement  on   the  summons  and  equitable  relief. 

may  be  made  as  follows :  To  clerk  :  ^  Larimer    v.   Clemmer,    31   O.    S. 

Issue  summons  for  the  within  named  499.     In  B.  &  O.  R  R.  Co.  v.  Weeden 

defendant  directed  to  the  sheriff  of  (in  June,  1894),  Severns,  J.,  of  the 


538  FORECLOSURE  OF  MORTGAGES.  [§  586. 

ant  files  an  answer  and  cross-petition  service  should  be  made  the 
same  as  upon  the  original  petition,  if  he  is  in  default.  Other- 
wise a  personal  judgment  cannot  be  rendered  upon  a  cross- 
petition  without  a  summons  being  issued  thereon  when  the 
defendant  is  in  default  for  answer  to  the  original  petition.^ 
Where  a  judgment  is  rendered  on  a  note  and  mortgage  against 
the  maker  and  payee  as  an  indorser,  and  an  order  of  sale  has 
been  made,  the  same  cannot  be  reversed  upon  the  ground  that 
such  payee  has  not  been  served  with  process.-  If  the  defend- 
ant is  a  non-resident,  service  must  be  made  as  in  other  cases 
by  publication.  A  judgment  in  foreclosure  against  a  non- 
resident mortgagor  without  constructive  service,  as  required 
by  the  code,'  will  not  bar  his  equity  of  redemption;*  nor  can 
a  personal  judgment  be  rendered  against  such  a  non-resident 
defendant  upon  constructive  service  merely.'  Where  the  aflBl- 
davit  upon  which  service  by  publication  has  been  made  is  in 
proper  form,  the  jurisdiction  of  the  court  cannot  be  collater- 
ally assailed  upon  the  ground  that  it  is  false.^ 

Sec.  586.  The  right  to  trial  by  jury. —  The  question  as  to 
whether  or  not  parties  in  foreclosure  have  a  right  to  demand 
trial  by  jury  is  often  a  perplexing  one,  and  has  troubled  both 
practitioner  and  court.  The  difficulty  arises,  however,  in 
laying  down  a  general  formula  or  rule  which  may  govern  all 
oases.  It  is  generally  conceded  that  where  questions  of  fact 
are  presented  which,  if  true,  will  extinguish  the  right  to  fore- 
close, a  trial  by  jury  may  be  demanded.  This  doctrine  has 
been  expressly  laid  down,  and  followed  in  practice,  and  yet  re- 
cent adjudications  are  apparently  at  variance  with  it.  A  brief 
review  of  the  cases  can  only  be  made.  As  a  legal  and  an  equi- 
table cause  of  action  are  joined,  it  is  therefore  said  that,  where 
a  judgment  is  asked  upon  the  imte  and  for  the  sale  of  the 

United  States  district  court  sitting  at  I  Thatcher  v.  Dickinson,  3  O.  C.  C. 

(Dolumbus,  Ohio,  in  an  action  against  144 

a  clerk  for  failure  to  issue  summons,  2  Larimer  v.  Clemmer,  31  O.  S.  499. 

decided  that  under  the  Ohio  statutes  ^  O.  Code,  sec.  5048. 

it  was  the  duty  of  the  attorney  to  see  *  Endell  v.  Leibrock,  33  O.  S.  254. 

that    the    summons    was     properly  5  Wood  v.  Stanberry,  21  O.  S.   142. 

placed  in  the  hand  of  the  sheriff,  aid  ^  Laughlin  v.  Vogelsong,  5  O.  C.  C. 

that  there  was  no  liability  on  the  part  407;  Harris  v.  Hardeman,  14  How. 

of  the  clerk  334 ;  Fowler  v.  Whitman,  3  O.  S.  271 ; 

Buchannan  v.  Roy,  2  O.  S.  251. 


g  586.]  FORECLOSDRE  OF  MORTGAGES.  539 

mortgaged  property,  any  issue  of  fact  which  affects  the  judg- 
ment upon  the  note  is  an  issue  which  either  party  has  a 
right  to  demand  shall  be  tried  to  a  jury.^  Yet  a  trial  by 
jury  was  denied  in  an  action  to  subject  the  estate  of  a  married 
woman  to  the  payment  of  a  note  and  for  foreclosure.^  In 
another  instance,  in  an  action  against  a  defendant  grantee  who 
had  assumed  payment  of  the  mortgage,  which  was  contro- 
verted, a  demand  to  trial  by  jury  was  made,  which  the  trial 
court  refused.  In  Si  2^<^f"  ouriam  report  it  was  stated  that  in 
taking  an  account  without  a  jury,  to  ascertain  how  much  of 
the  mortgage  debt  remained  unpaid,  and  in  allowing  execu- 
tion against  the  mortgagor,  the  trial  court  did  not  err.'  In 
another  case,  decided  by  the  circuit  court  of  Ohio,  upon  the 
same  question,  in  which  a  defendant  mortgagor  answered  set- 
ting up  a  defense  that  the  mortgage  given  to  the  plaintiff  to 
secure  a  balance  of  unpaid  purchase-money,  upon  certain  mis- 
representations for  which  he  claimed  damages,  the  rule  was 
adopted  that,  where  new  matter  is  set  up  in  an  answer 
which  states  a  legal  cause  of  action,  which,  if  established,  ex- 
tinguishes the  cause  of  action  set  forth  in  the  petition,  a  right 
of  trial  by  jury  exists.*  The  converse  of  this  arises  where 
new  matter  is  set  up  in  an  action  constituting  an  equitable 
case,  extinguishing  a  legal  cause  of  action  contained  in  the 
petition.'  In  still  another  case,  where  the  prayer  was  for  an 
ordinary  decree  of  foreclosure,  and  the  answer  of  the  defend- 
ant was  that  he  had  paid  the  mortgage  indebtedness,  the  right 
to  trial  by  jury  was  held  not  to  exist.^ 

1  Ladd  V.  Jones,  10  O.  S.  437  (1859) ;  case  in  which  it  was  held  that  if  the 

Brundridge  v.  Goodlove,  30  O.  S.  374  legal  defense  set  up  were  such  that,  if 

(1876);  Kellar  v.  Wenzell,   23  O.   S.  established,  it  would  extinguish  tlie 

579.  equitable  cause  of  action,  is  expressly 

!i  Avery  v.  Van  Sickle,  35  O.  S.  270.  disapproved.    The  defense  made  in 

This  action  would  be    inapplicable  this    case   was,  that   the    mortgage 

under  the  present  state  of  the  law.  indebtedness  had  been  paid,  which, 

3  C.  S.  &  L.  Ass'n  V.  Kreitz,  41  O.  S.  if  true,  necessarily  ended  the  whole 

143(1884).  proceeding.    The  issues  raised  by  the 

*  Sallady  v.  Webb,  2  O.   C.  C.  553  defendant  were  in  fact  submitted  to 

(1887,  Bradbury,  J.).  a  jury,  which  found  in  favor  of  the 

»  Buckner  v.   Mear,  2G  O.  S.  514.  defendant,  thereby  extinguishing  the 

8  Alsdorf  V.  Reed,  45  0.  S.  653(1888).  equitable  cause  of  action,  and   the 

Following  this  case  it  would  seem  plaintiff's    petition    was    dismissed, 

that  the  doctrine  of  the  circuit  court  The  plaintiff  thereupon  appealed  the 


540  FORECLOSURE  OF  MORTGAGES.  [§  586. 

A  distinction  upon  this  question  is  clearly  drawn,  that  if 
a  money  judgment  will  answer  the  demand,  or,  in  other 
words,  is  the  principal  relief  sought,  then  either  party  is  enti- 
tled to  trial  by  jury.'  But  where  the  relief  sought  is  para- 
mount or  goes  be3^ond  a  mere  money  judgment,  such  as  sale 
and  distribution  of  the  funds  as  in  foreclosure  of  a  mortgage, 
then  no  right  of  trial  by  jury  exists.  Such  seems  to  be  the 
tenor  of  the  more  recent  decisions  upon  this  question.^ 

These  principles  do  not  conflict  with  those  announce  1  by 
other  cases  where  the  defendant  controverts  the  debt  in  such 
a  manner  that,  if  he  is  right  in  his  contention,  it  completely 
extinguishes  the  right  or  necessity  for  foreclosure.  If  there 
is  no  debt  there  can  be  no  foreclosure.  This  has  been  so  de- 
cided by  the  supreme  court  of  Ohio  in  an  unreported  case.^ 

This  is  an  illustration  of  the  confusion  caused  by  the  union 
of  legal  and  equitable  causes  of  action.  There  are  other  cases 
of  similar  nature,  as  where  an  accounting  and  a  money  judg- 
ment is  asked,  or  where  a  reformation  of  an  instrument  is 
asked  and  a  money  judgment  thereon.  It  will  probably  al- 
ways be  a  bone  of  contention  until  some  radical  change  is 
made.  It  cannot  reasonably  be  expected  that  courts  can 
foresee  how  decisions  will  operate  upon  future  cases.  Cases 
may  be  peculiar  and  of  such  a  nature  that  it  would  be  ad- 
visable to  try  the  whole  case  to  the  chancellor.  On  the 
other  hand,  the  questions  raised  by  the  answer  of  the  defend- 
ant may  demand  that  the  questions  going  to  the  money  judg- 

case,  the  only  question  there  reviewed  the  supreme  court  of  Ohio  June  5, 

being  as  to  the  right  of  appeal  on  tiie  1894.  Black  v.  Herbert,  31  W.  L.  B. 

part  of  the  defeated  plaintiff.     But  348,  No.  2921,  the  defendant  in  the 

the  court  held  that  neither  party  had  trial  court  set  forth  a  claim  by  way 

the  right  to  a  jury  trial.     In  the  opin-  of  set-off  consisting  of  rent  which 

ion  of  Minshall,  J.,  the  difference  be-  he  claimed  compensated  the  amount 

tween  these  cases,  hinging  on   the  due  upon  the  note  secured  while  in 

prayer  is  pointed  out,  as  shown  in  the  hands  of  an  intermediate  holder, 

text.     45  O.  S.  653.  The  case  was  tried  to  a  jury,  verdict 

1  Dunn  V.Kan  macher,  26  0.  S.  497;  in  favor  of  defendant.     The  plaintiff 

Chapman  v.  Lee,  45  O.  S.  356 ;  Bruud-  appealed  the  case  to  the  circuit  court, 

ridge  v.  Goodlove,  30  O.  S.  374 ;  Aver-  which  court  dismissed   the  appeal, 

ill  Coal  &  Oil  Co.  v.  Verner,  22  O.  S.  whose    judgment  was  affirmed   by 

372.  the  supreme  court,  thus  holding  that 

2Alsdorf  V.   Eeed,   45  O.   S.    653;  a  right  of  trial  by  jury  existed  in  a 

Black  V.  Boyd,  50  O.  S.  46.  case  of  this  character. 

3  In  an  unreported  case  decided  by 


§  587.]  FORECLOSURE  OF  MORTGAGES.  oil 

ment  would  better  be  submitted  to  the  jury,  that  it  may  first 
be  determined  whether  the  plaintiff  will  be  entitled  to  any  equi- 
table relief;  and  if  the  answer  discloses  such  a  state  of  facts 
that  the  right  of  equitable  relief  will  not  be  completely 
barred,  then  the  case  may  properly  be  tried  without  the  in- 
tervention of  a  jury. 

It  is  held  in  other  code  states  that  a  jury  trial  may  be  had 
in  foreclosure  proceedings,  upon  the  theory  that  it  is  an  action 
for  the  recovery  of  money,  though  not  one  for  money  only.^ 

Sec.  587.  Saieof  mortgaged  property  .—  When  a  mortgage 
is  foreclosed  the  sale  of  premises  shall  be  ordered;  and  when 
the  same  are  to  be  sold  in  one  or  more  tracts,  the  court  may 
direct  that  they  be  sold  in  parcels  or  in  one  of  the  tracts  as  a 
whole.-  As  between  successive  purchasers  in  fee  and  for  full 
value  of  separate  parcels  of  land  incumbered  by  a  prior  mort- 
gage on  the  whole,  a  sale  of  the  same  to  satisfy  a  mortgage 
will  be  made  in  the  inverse  order  of  alienation.^  When  the 
mortgaged  property  is  situated  in  more  than  one  county,  the 
•court  may  order  the  officer  in  the  county  where  the  land  is 
situated  to  make  the  sale,  or  may  direct  one  officer  to  sell  the 
whole.*  An  order  to  sell  cannot  be  made  subject  to  any  un- 
determined indebtedness  set  forth  in  the  answer  and  cross- 
petition  of  a  defendant  lienholder.^  A  judgment  creditor 
who  has  obtained  judgment  against  a  husband  cannot  enforce 
the  sale  of  premises  upon  which  the  husband  and  wife  have 
executed  a  mortgage  in  order  to  cut  off  a  right  of  homestead.' 
A  judicial  sale  ordered  and  made  in  foreclosure  proceedings 
instituted  by  a  mortgagee  against  the  mortgagor  alone,  after 
the  mortgagor  has  conveyed  his  equity  of  redemption,  is  not 
void.^ 

1  Clemenson  v.  Chandler,  4  Kan.  2  R.  s.,  sec.  5316. 

558 ;  Bradley  v.  Parkhurst,  20  id.  470.  3  Sternberger  v.  Hanna,  42  O.  S. 

In  the  case  of  Fleming  v.  Kirkendal,  305. 

12  W.  L.  B.  26,  the  defense  was  made  «  R  S.,  sec.  5317. 

that  the  debt  had  been  paid.     The  *  Thatcher  v.  Dickinson,  3  O.  C  C. 

Pickaway  county  district    court    in  144. 

this  case  held  that  the  question  of  ^  Berusee  v.  Hamilton,  6  O.  C.  C. 

payment  could  be   submitted  to  a  487. 

jury.     This  case  was  affirmed  upon  "^  Childs  v.  Childs,  10  O.  S.  339. 
•other  questions  in  31  O.  !S.  568. 


542  roRECLOSiJKE  or  mortgages,  [^§  588,  589. 

Sec.  588.  Motion  to  modify  and  set  aside  in  part  decree 

of  confirmation. — 

Now  comes  L.  N.  P.,  the  purchaser  of  the  property  hereto- 
fore sold  in  the  above-entitled  cause  by  the  sheriff  of  said 
county,  and  moves  the  court  to  modify  the  order  of  confirma- 
tion heretofore  made  in  this  respect,  to  wit:  That  the  con- 
firmation of  the  sale  of  the  property  described  as  being  in 

section  twenty-one  (21),  town  nine  (9),  range  nine  (9),  in 

county,  Ohio,  be  set  aside. 

Note.—  From  Niles  v.  Parks,  49  O.  S.  370.  The  court  has  complete  power 
or  control  over  its  own  orders  during  the  term  at  which  they  are  entered 
and  may  set  them  aside  at  its  discretion.  Id. ;  Huntington  v.  Finch,  3  O.  S. 
445.  This  is  not  lost  by  a  continuance  to  another  term.  Niles  v.  Parks, 
mpra;  Bank  v.  Doty,  9  O.  S.  508.  See  6  O.  S.  228 ;  35  O.  S.  177.  Purchaser 
may  make  motion  to  set  aside  or  confirm  a  sala  Reed  v.  Radigan,  43  O.  S. 
294.  See  11  O.  S.  516-20;  25  O.  S.  270.  All  parties  — defendants,  plaintiffs 
and  purchaser  —  may  be  heard.  Fideldy  t.  Diserens,  26  O.  S.  314;  10  O.  S. 
557. 

Sec.  589.  Defenses  in  foreclosure  proceedings. —  Defenses 
to  an  action  in  foreclosure,  to  be  available,  must  be  set  forth 
in  the  answer  in  such  a  way  as  to  constitute  a  complete  de- 
fense, and  none  are  available  which  are  not  so  pleaded.^  Where 
the  mortgaged  premises  are  sold  to  a  person  holding  a  mort- 
gage thereon  for  purchase-money,  in  satisfaction  of  a  judg- 
ment for  a  portion  of  the  purchase-money  notes  which  had 
become  due,  a  sale  thereunder  cannot  be  urged  as  a  defense 
to  an  action  by  the  assignee  of  the  mortgage  for  the  foreclos- 
ure of  the  same  for  the  remaining  notes  against  the  mort- 
gagor and  his  grantees.^  If  a  mortgagor  has  sold  mortgaged 
premises  to  another  who  has  assumed  and  agreed  to  pay  the 
mortgage  as  part  of  the  consideration,  and  the  premises  are 
transferred  by  such  person  to  still  another  grantee,  upon  an 
agreement  that  the  intermediate  grantee  will  pay  off  and 
discharge  such  indebtedness,  the  last  grantee,  in  an  action  by 
a  raortsrairee  to  foreclose,  cannot  avail  himself  of  a  defense 
that  the  loan  was  originally  given  for  a  usurious  rate  of  in- 
terest, as  he  was  not  a  party  thereto,  and  does  not  stand  in 
any  relation  to  the  borrov/er  entitling  him  to  make  such  a 
defense.^  In  an  action  by  a  prior  mortgagee  to  foreclose  a 
mortgage  on  premises  which  have  been  conveyed  in  trust  for 

1  Higman  v.  Stewart,  38  Mich.  513;        2Hollister  v.  Dillon,  4  O.  S.  197. 
Mann  v.  State,  116  Ind.  383;  19  N.  E.        3  Jones  v.  Insurance  Co.,  40  O.  Si. 
Rep.  181  (1888).  68a 


§  589.]  FOEECLOSUKE    OF   MOKTGAGES.  54S 

the  benefit  of  creditors,  the  beneficiaries  may  set  up  a  defense 
of  usury  against  such  mortgage,  even  though  the  trustees 
under  such  conveyance  fail  so  to  do.*  Where  the  petition 
contains  the  ordinary  allegation  with  respect  to  a  defendant 
lienholder,  that  he  claims  some  lien  on  the  mortgaged  prem- 
ises, and  asking  that  he  be  recjuired  to  answer  the  same,  such 
a  defendant  cannot,  after  he  has  failed  to  answer,  object  to  a 
decree  in  a  proceeding  in  error  because  it  includes  usurious 
interest.^  In  case  the  note  stipulates  that  the  personal  prop- 
erty of  the  maker  must  be  exhausted  before  foreclosure,  the 
property  of  the  debtor  is  regarded  as  exhausted  when  he  has 
nothing  which  can  be  reached ;  the  creditor  is  not  then  bound 
to  bring  suit  to  exhaust  the  equities  of  the  judgment  debtors 
before  foreclosing  the  mortgage,  and  no  such  defense  can 
be  made  in  the  action.'  As  stated  in  a  preceding  section,  a 
demand  is  not  necessary  where  the  conditions  are  that  the 
mortgagor  shall  pay  or  cause  the  note  to  be  paid  at  maturity. 
It  is  therefore  no  defense  that  the  mortgagee  did  not  make  a 
demand  and  give  notice  of  non-payment  in  order  to  charge 
the  indorser  personally.*  "Where  a  person  has  taken  a  mort- 
gage of  indemnity  upon  which  a  judgment  has  been  rendered 
against  such  mortgagee  on  his  indorsement  in  foreclosure 
proceedings  against  the  lands  brought  by  others,  such  in- 
demnity mortgagee  may,  where  all  parties  interested  are  be- 
fore the  court,  require  the  proceeds  of  such  sale  to  be  applied 
to  the  payment  of  the  judgment  against  him.' 

It  is  no  defense  on  the  part  of  a  mortgagor  that  a  third 
party  has  also  brought  a  similar  action  against  him  in  a  court 
of  concurrent  jurisdiction  founded  upon  the  same  claims  set 
up  in  plaintiff's  petition.^  The  fact  that  no  written  assign- 
ment of  a  junior  mortgage  has  been  taken  or  recorded  will 
not  defeat  an  action  by  such  mortgagee  to  foreclose  the  same.' 
It  is  a  rule  that  usury  may  be  available  as  a  defense  between 
the  immediate  parties  to  a  mortgage,  but,  being  personal  to 
the  mortgagor,  it  cannot  be  set  up  by  one  who  purchases 

1  Bank  t.  IVll,  14  O.  S.  200.  *  Hilton   v.   Catherwood,  10  O.  S. 

-  Hubbell  V.  Mansfield,  4  Am.  Law    109.    See  ante,  sec.  575. 
Rec.  (C.  S.  a,  1875).  5  Kramer  v.  Bank,  15  O.  253. 

3  Riblet  V.  Davis,  24  O.  &  114.  6  West  v.  Morris,  2  Disn.  415. 

'  HoUiger  v.  Bates,  43  O.  S.  437. 


544:  FOItECLOSUKE    OF    MOKTGAGES.  [§  %S[). 

property  subject  to  the  mortgage  lien  tainted  with  usury,  as 
it  is  thereby  waived.^  But  a  defendant  mortgagor  may  set 
up  as  a  defense,  by  way  of  counter-claim,  damages  claimed 
by  him  arising  upon  a  contract  in  part  performance  of  which 
the  mortgage  was  executed  by  him;-  or  he  may  set  up  an 
illegality  in  the  consideration  of  the  mortgage  as  forbearance 
to  prosecute  a  criminal  prosecution.*  A  court  will  never  aid 
in  the  foreclosure  of  a  mortgage  founded  upon  an  illegal  con- 
sideration. This  defense  ma}''  not  only  be  made  by  the  mort- 
gagor, but  by  any  one  succeeding  to  his  interest  as  well.*  In 
an  action  by  the  vendor  against  the  vendee  for  the  balance  of 
purchase-money,  the  vendee  by  way  of  counter-claim  may  set 
up  a  defense  for  an  unpaid  assessment  which  was  a  lien  on 
the  premises  at  the  time  of  the  conveyance.'  A  mortgagor 
may  claim  as  against  an  assignee  of  a  note  and  mortgage  a 
defense  that  the  same  was  procured  by  fraud  ;^  and  he  may 
also  claim  damages  as  against  the  mortgagee  for  any  fraud 
practiced  by  him  in  the  sale  of  the  premises."  When  fraud  is 
claimed  as  a  defense  the  answer  must  clearly  set  forth  the 
facts  constituting  the  same,  and  the  burden  of  proof  is  upon 
the  defendant.^  Damages  may  also  be  claimed  by  the  mort- 
gagor for  fraud  on  the  part  of  the  mortgagee  in  concealing 
from  him  material  facts  as  to  the  situation  and  extent  of  the 
premises.^  An  alteration  made  by  a  recording  officer  is  in  it- 
self harmless,  and  cannot  therefore  be  urged  as  a  defense  to  an 
action  to  foreclose.^"  Where  a  demurrer  has  been  sustained  to 
a  petition,  and  an  answer  and  cross-petition  with  proper  aver- 
ments and  prayer  have  been  filed  in  the  same  case  by  other 

1  Cramer  v.  Lepper,  36  O.  S.  59 ;  5  Craig  v.  Heis,  30  O.  S.  550. 
Bankv.  Bell,  14  O.  S.  201;  Green  v.  SBaiiy    v.    Smith,    14    O.   a   396; 
Kemp,  13  Mass.  515;  Jones  v.  Insur-  Palmer  v.  Yates,  3  Sandf.  137;  Allen 
ance  Co.,  40  O.  S.  583 ;    Loomis  v.  v.  Shackleton,  15  O.  S.  145. 

Eaton.  32  Conn.  550 ;  Austin  v.  Chit-        "  Allen  v.  Shackleton,  supra;  Cor- 

tenden,  33   Vt,    553;   Studebaker  v.  nell  v.  Corbett,  64  Cal.  197;  Wimer 

Marquardt,  55  Ind.  341 ;   Shufelt  v.  v.  Smith,  22  Oreg.  469. 
Shufelt,   9  Paige,    137.     See    sec.   2,        s  Sloan  v.  Holcomb,  29  Mich.  153; 

Jones  on  Mortgages,  sec.  1494,  Elphick  v.  Hoffman,  49  Conn.  331. 

2  Burckhardt  v.  Burckhardt,  36  0.        » Pierce  v.  Tiersch,  40  O.  S.  168 ; 
S.  261.  Allen   v.  Shackleton,  15  O.  S.   145; 

3  Raquet  v.  Roll,  7  O.  (Part  1),  76.        Baughman  v.  Gould,  45  Mich.  481. 
*McQuade  v.  Rosecrans,  36  O.  S.       "^Hemstreet  v,  Kutzner,  58  Ind.  319. 

442. 


I 


^  590.1  FORECLOSURE    OF    MORTGAGES. 


545 


morto-aire  lienholders,  the  court  mav  proceed  to  determine 
the  rights  of  the  latter,  and  render  judgment,  even  though  the 
plaintiff  does  not  amend  his  petition.  The  court  will  treat 
the  answer  as  a  cross-petition  if  not  so  denominated.^ 

Sec.  590.  Answer  that  defendant  holds  premises  under 
laud  contract,  and  that  mortgage  was  given  after  execu- 
tion of  contract. — 

That  on  or  about  the day  of ,  18—,  defendant  pur- 

chased  the  premises  in  the  plaintiff's  petition  described  by  a 
land  contract  of  the  defendant  J.  H.  H.,  and  this  defendant  at 
once  went  into  possession  of  said  premises  and  has  remained 
in  possession  thereof  ever  since  and  is  still  in  possession  thereof. 
That  said  purchase  by  the  defendant  of  said  H.  of  said  prem- 
ises was  long  before  the  plaintiff's  mortgage  was  executed 
and  delivered  to  him,  and  he  avers  that  said  plaintiff  had  full 
knowledge  of  the  fact  that  this  defendant  had  purchased  said 
premises 'of  said  H.,  and  that  this  defendant  was  in  actual 
possession  thereof,  and  that  he  has  ever  since  been  in  actual 

possession  of  the  same.     That  afterwards  on,  to  wit.  the 

day  of ,  18—,  the  defendant  H.  and  his  wife  executed  a 

deed  to  this  defendant  for  said  premises  in  accordance  with 
the  terms  of  said  contract,  which  deed  was  duly  recorded  by 
the  defendant.  He  further  said  that  he  had  no  knowledge 
whatever  of  the  giving  of  said  mortgage  by  said  H.  to  the 
plaintiff  at  the  time  said  mortgage  was  given  until  long  after. 
He  further  says  that  said  premises  were  sold  for  taxes  to  the 

defendant  C.  on  or  about  the  day  of ,  18—,  and  that 

afterwards,  on  the day  of ,  18—,  a  deed  was  made 

and  executed  by  the  auditor  of  said  county  to  said  — ^ 

for  said  premises,  thereby  conveying  the  same  to  said 

,  who  afterwards,  on  the day  of ,  18—,  conveyed 

the  same   by  deed  to ,  this  defendant's  wife,  who 

caused  said  deed   to  be  recorded  in  the  proper  office  in  said 

county  of ,  state  of  Ohio,  and  who  now  holds  the  legal 

title  to  said  premises.  He  further  says  that  said  premises  are 
now  in  the  actual  possession  of  himself  and  wife,  and  have 
been  ever  since  he  purchased  said  premises  of  said  H.  as  afore- 
said. 

The  defendant,  further  answering,  says  that  he  paid  upon 
said  contract  for  said  land  to  said  H.,  before  he  had  knowl- 
edge that  said  mortgage  was  placed  on  said   property,  the 

sum  of  $ ,  and  interest,  which  amount  he  is  entitled  to 

have  paid  back  to  him  before  said  mortgage  shall  be  ]mid ; 
and  he  avers  that  said  sum  so  paid  is  a  first  lien  upon  said 
property  and  superior  to  the  lien  or  pretended  lien  of  the 
l>Uuni,iff'. 

I  Kloone  v.  Bradstreet,  T  O.  S.  322. 
35 


546  rOKECLOSUKE    OF    MORTGAGES.  [§§  591,  592. 

Wherefore,  and  by  reason  of  the  premises,  this  defendant 
says  that  the  plaintiff  has  lost  whatever  interest  it  had  by 
virtue  of  said  pretended  mortgage,  that  the  plaintiff  is  not 
entitled  to  the  relief  prayed  for  by  hira,  and  he  prays  judg- 
ment against  the  plaintiff  and  for  all  proper  relief. 

G.  A.  G.,  Attorne3^ 

Note. —  From  Ja'^'ser  v.  Hardy,  48  O.  S  337.  Possession  of  lands  by 
vendee  under  contract  to  purchase  is  constructive  notice  of  contract,  .ind  a 
mortgage  placed  thereon  subsequent  thereto  by  the  vendor  is  subordinate 
to  the  vendee's  equity.  Id.  Payments  made  by  the  vendee  with  knowl- 
edge of  the  mortgage,  however,  are  made  at  his  peril.  Id. :  20  O.  S.  68 ;  1 
Sandf.  Ch.  344 ;  87  N.  Y.  457 ;  16  S.  &  R.  266 ;  1  Warvelle  on  Vendors,  188. 
Such  purchaser  might  continue  to  make  payments  on  purchase-money 
until  the  holder  of  the  mortgage  asserts  his  claim ;  and.  before  this  was 
done,  complete  his  payments  and  receive  his  deed.     48  O.  S.  341 ;  48  O.  S.  157. 

Sec.  591.  Answer  asking  to  have  mortgaged  premises 
sold  in  inverse  order  of  alienation. — 

That  after  the  making  of  the  mortgage  set  forth  in  said 

petition,  to  wit,  on  the day  of ,  18 — ,  \the  tnortgagor] 

sold  and  conveyed  to  the  defendant  a  portion  of  said  mort- 
gaged premises,  described  as  follows:  [^Describe property  con- 
veyed.'] 

That  on  the day  of ,  18 — ,  after  the  sale  and  con- 
veyance of  the  above-described  real  estate  to  this  defendant, 
said  [jnoi'tgagor']  also  sold  and  conveyed  an  undivided  half  of 
the  residue  of  said  premises  to  one  E.  F. 

The  defendant  therefore  prays  that  the  premises  still  re- 
maininoj  in  the  name  of  the  mortgagor  be  first  sold  under  the 
decree  of  foreclosure,  to  satisfy  said  mortgage  indebtedness, 
and  that  if  the  proceeds  derived  from  the  sale  of  such  portion 
remaining  in  said  mortgagor  be  not  sufficient  to  satisfy  said 
mortgage  indebtedness,  that  the  part  of  said  premises  sold 
and  conve^^ed  by  said  mortgagor  to  E,  F.  be  next  sold,  and 
that  the  premises  conveyed  to  this  defendant  be  not  sold 
unless  a  deficiency  exists  after  said  sales,  and  said  mortgage 
indebtedness  remains  unsatisfied. 

Note. —  See  ante,  sec.  587,  p.  541,  note  8. 

Sec.  592.  Answer  that  note  bears  usurious  interest  and 
that  payments  made  thereunder  reduce  amount  due. — 

Defendant  admits  the  making  and  delivery  of  the  note  set 
forth  in  plaintiff's  petition.  That  at  the  time  of  the  execution 
of  said  note  the  defendant  agreed  to  pay,  and  the  said  plaintiff 
agreed  to  receive,  for  the  use  of  the  money  which  forms  the 
consideration  of  said  note,  a  higher  rate  of  interest  than  eight 
per  cent,  per  annum,  as  is  expressed  in  said  note. 

The  defendant  further  avers  payment  upon  said  note  on  the 

day  of ,  IS — ,  as  interest,  the  sum  of  $ over  and 

above  the  eight  per  cent,  expressed  in  said  note,  all  of  which 
was  usurious. 


§§  593,  594.]  FORECLOSURE    OF   MORTGAGES.  547 

That  on  the  day  of  ,  18 — ,  this  defendant  paid 

to  said  plaintiff  as  interest  on  said  note  the  sura  of  $ ,  of 

which  I was  usurious.     The  defendant  further  avers  that 

on  the day  of ,  18 — ,  this  defendant  paid  upon  said 

note,  from  the  proceeds  of  sale  of  a  portion  of  said  mortgage 

security,  the  sum   of  $ .     This  defendant  therefore  says 

that  by  reason  of  said  agreement  to  pay  and  said  plaintiff's 
agreement  to  receive  usurious  interest,  and  the  payment  of 

usurious  interest  on  the -dav  of ,  IS — ,  above  set  forth, 

there  is  not  due  from  this  defendant  to  the  plaintiff  upon  said 

note  any  greater  sum  than  $ with per  cent,  interest 

from  the da}"  of ,  18 — . 

Sec.  593.  Answer  that  notes  were  without  consideration 
and  were  purchased  after  maturity. — 

And  now  comes  C.  C.  S.,  one  of  the  defendants  herein,  and 
for  separate  answer  to  the  plaintiff's  petition  says  that  he  ad- 
mits the  execution  of  said  notes  at  the  time  and  for  the 
amount  claimed  in  plaintiff's  petition,  but  denies  that  there  is 
any  money  due  or  to  become  due  on  said  notes. 

That  as  a  defense  to  plaintiff's  petition  this  defendant  says 
that  said  notes  were  given  entirely  without  Consideration,  and 
that  this  defendant  is  the  husband  of  E.  S.,  and  that  he  signed 
said  notes  entirely  without  consideration,  and  that  this  de- 
fendant ought  not  to  be  compelled  to  pay  same. 

That  as  a  further  defense  this  defendant  says  that  the 
plaintiff  purchased  said  notes  after  same  became  due  and 
payable.  The  defendant  therefore  prays  to  be  dismissed  from 
this  suit,  with  his  costs. 

Sec.  594.  Answer  and  cross-petition  setting  up  judgment 
lien. — 

[  Caption,'] 

And  this  defendant,  by  way  of  cross-petition  against  said 
plaintiff,  says: 

1.  That  on  the day  of ,  18 — ,  this  defendant,  in  a 

certain  action  in  this  court,  duly  and  legally  recovered  a  judg- 
ment in  this  court  against  the  defendants  J.  W.  G.,  H.  B.  and 

W.  A.  C,  for  the  sum  of dollars,  and  dollars  and 

cents  costs  of  suit. 

2.  That  on  the day  of ,  18 — ,  this  defendant  caused 

an  execution  to  be  issued  upon  saitl  judgment,  by  the  clerk  of 

this  court,  directed   to  the  sheriff  of  county,  who,  for 

want  of  goods  and  chattels  whereon  to  levy,  on  the day 

of ,  18 — ,  levied  the  same  upon  the  lands  and  tenements 

and  real  estate  in  the  petition  described,  which  said  execution 

was  returned  by  the  sheriff'  of  said  county  on  the  day  of 

,  18 — ,  for  want  of  time  to  advertise  and  sell  said  real  es- 
tate; all  of  which  will  more  fully  appear,  reference  being  had 
to  the  records  of  this  court  in  said  case. 


5J:8  FOKEGLOSUKE  OF  MORTGAGES.      [§§  595,  596. 

3.  That  costs  have  accrued  on  said  judgment  and  execution 
to  the  amount  of dollars, 

4.  On  the day  of ,  18 — ,  the  defendant  H.  B.  paid 

to  this  defendant  the  sura  of dollars  and cents,  being 

the  one-third  of  the  amount  of  said  judgment  above  men- 
tioned ;  that  no  other  payment  has  been  made  on  said  judg- 
ment, and  that  said  judgment  and  said  levy  remain  in  full 
force,  unreversed  and  unsatisfied  (except  as  to  the  amount 
paid  by  H.  B.  as  above  stated),  and  that  said  judgment  and 
costs  and  levy  is  a  legal,  valid  and  subsisting,  and  the  oldest 
and  prior  lien,  on  the  real  estate  in  the  petition  described,  and 
should  be  first  paid  out  of  the  proceeds  of  the  sale  thereof. 
This  defendant  is  willing  that  said  real  estate  may  be  sold  as 
this  court  may  order  and  direct. 

Sec.  595.  Answer  that  note  and  mortgage  was  made  to 

cheat  and  defrand  creditors,  and  without  consideration. — 

{^Caption.'] 

Defendant  says  that  at  the  time  of  the  execution  and  de- 
livery of  the  S note  and  mortgage  mentioned  in  said  peti- 
tion by  the  defendant  J.  W.  G.  to  the  said  plaintiff  E.  M.  G., 
he,  the  said  J.  AY,  G.,  was  insolvent  and  largely  indebted  to 

this  defendant  upon  a  certain  claim,  to  wit,  the  sum  of  % , 

and  largely  indebted  to  others,  all  of  which  the  said  E.  M.  G. 
then  well  knew ;  and  defendant  avers  that  the  said  note  and 
mortgage  mentioned  in  said  petition  of  plaintiff  was  executed 
and  delivered  to  the  said  E.  M.  G,  b}'"  the  said  J.  W.  G.  for 
the  purpose  of  cheating  and  defrauding  this  defendant  and 
others,  the  creditors  of  the  said  J.  W.  G,,  and  for  the  purpose 
of  hindering  and  delaying  said  creditors  in  the  collection  of 
their  said  claims,  all  of  which  the  said  E,  M.  G,  then  and  at 
all  times  well  knew;  and  the  said  note  and  mortgage  was  so 
executed  and  delivered  without  any  consideration  whatever, 
and  the  said  E.  M.  G,  took  said  note  and  mortgage  for  the 
purpose  of  aiding  the  said  J,  W.  G.  in  cheating  and  defraud- 
ing his  creditors,  and  in  hindering  and  delaying  them  in  the 
collection  of  their  claims,  and  all  of  which  was  done  by  and 
between  the  said  J.  W.  G.  and  E.  M.  G,  in  pui'suance  of  a  com- 
bination and  confederation  between  them  for  the  express  pur- 
pose of  so  cheating,  defrauding,  hindering  and  delaying  said 
creditors. 

This  plaintiff  therefore  says  that  the  said  E.  M.  G.  is  not 
entitled  to  anything  by  reason  of  said  note  and  mortgage,  and 
the  plaintiff  asks  that  said  note  and  mortgage  be  adjudged 
fraudulent  and  void. 

Sec.  596.  Answer  and  cross-petition  by  defendant  after 

proceeds  are  in  court,  contesting  co-defendant's  mortgage.— 

1,  Now  comes  C,  M,  O.  and  by  leave  of  court  files  his  an- 
swer and  cross-petition  herein,  and  says  that  on  the day 


§  597.]  FOKECI.OSURE    OF    MORTGAGES.  C49 

of ,  18—,  J.  ]\r.  P.  made,  executed  and  delivered  to  the  said 

C.  M.  O.  his  promissory  note  of  that  date,  of  which  the  fol- 
lowing is  a  copy:  [Copy."] 

No  payments  have  been  made  on  said  note  and  there  is  due 

thereon  to  said  C.  M.  O.  the  sum  of  % with per  cent 

interest  from ,  18 — . 

2.  [Formal  averments.']  At  the  time  of  the  execution  and 
delivery  of  said  note  by  said  J.  M.  P.,  and  to  secure  the  pay- 
ment of  the  same,  said  J.  M.  P.  and  his  wife,  C.  P., who  thereby 
released  her  rio^ht  and  expectancy  of  dower  in  said  premises, 
made,  executed  and  delivered  to  said  CM.  O.  their  mortgacre 
deed  upon  the  premises  set  forth  and  described  in  plaintiff's 
petition  and  thereby  conveyed  to  defendant  said  premises. 
Said  mortgage  deed  had  a'^  condition  written  therein  as  fol- 
lows :  That  if  said  note  should  be  paid,  then  said  mortgage 
deed  to  be  void.  The  said  mortgage  deed  has  become  abso- 
lute;  the  conditions  thereof  have  been  broken.  Said  mort- 
gage deed  was  filed  with  the  recorder  of county,   )hio,  for 

record  on  the day  of ,  18—,  and  was  recorded  in  vol- 

vime ,  page ,  of  record  of  mortgages  for county, 

Ohio.  This  defendant  further  says  that  said  property  has 
been  sold  by  the  former  order  of  this  court  and  defendant's 
lien  transferred  to  the  fund  now  in  court,  the  proceeds  of  such 

sale.     Defendant  further  says  that  the  co-defendant,  the , 

filed  its  mortgage  on  the  day  of  ,  IS — ,  at  

o'clock  — .  M.     Said  mortgage  was   made  and  delivered  to 

said on  the day  of ,  18—,  and  at  said  time  no 

deed  or  conveyance  of  said  property  had  ever  been  made  to 

said  P.,  and  no  conveyance  was  made  to  said  P.  until  the 

day  of  ,  IS — ;  \hat  the  mortgage  of  the  plaintiff  was 

made  as  alleged  in  said  petition. 

Defendant  therefore  prays  that  the  court  order  his  claim 
paid  out  of  the  proceeds  of  such  sale,  subject  only  to  the 
claim  of  the  plaintiff  that  the  amount  due  him  upon  his  mort- 
gage may  be  found  and  declared,  and  for  such  other  relief  as 
he  may  be  entitled  to. 

Sec.  507.  Answer  and  cross-petition  of  bnilding  associa- 
tion in  foreclosnre  proceedings. — 

And  now  comes  the  defendant,  the  H Building  and 

Loan  Association,  and  for  its  answer  and  cross-petition  says 
that  it  is  a  corporation  duly  incorporated  under  the  laws  of 

Ohio.     On  the  day  of  ,   IS—,  the  said  defendant, 

J.  M.  P.,  executed  and  delivered  to  this  defendant  his  certain 
written  obligation,  of  which  the  following  is  a  true  copy, 
to  wit:  [Cojjy.'] 

The  said  defendant,  J.  'M.  P.,  has  not  paid  the  weekly  instal- 
ments of  dues  and  the  monthly  instalments  of  interest  as  re- 
quired by  the  terms  of  the  aforesaid   note,  and  there  is  due 


.550  FOEECLOSUEE    OF   MOETGAQES.  [§  597. 

nnd  unpaid  thereon  at  this  date  ( ,  18—),  for  dues  $ , 

and  for  interest  $ ,  making  in  all  the  sum  of  dollars 

and cents. 

Section  I  of  article  11   of  the  constitution  of  The  H 

Building  and  Loan  Association  provides  as  follows:  "Any 
member  who  neglects  to  pay  his  weekly  dues  shall  be  fined 
five  (5)  cents  for  every  default  on  each  and  every  share.  When 
the  fines  of  a  share  equal  the  paid  weekly  instalments  on  the 
same  it  shall  be  forfeited  by  its  owner  to  the  association." 

The  defendant  further  says  that  said  J.  M.  P.  has  failed 
and  neglected  to  pay  his  weekly  dues  as  required  by  said  note 
for  the  forty-two  weeks  last  past,  whereby  the  said  J.  M.  P. 
is  indebted  to  this  defendant  for  fines  in  the  sum  of dol- 
lars and cents.     Whereupon  this  defendant  says  that  the 

said  defendant.  J.  M.  P..  is  at  this  time  indebted  to  it  in  the 

sum  of  dollars  and cents  for  dues,  interest  and  fines 

called  for  by  said  note,  and  for  which  amount  this  defendant 
asks  judgment. 

And  the  said  H Building  and  Loan  Association  for 

a  second  cause  of  action  says:  It  embodies  in  this  its  sec- 
ond cause  of  action  all  the  allegations  of  its  first  cause  of  ac- 
tion herein,  and  further  says.  That  in  order  to  secure  the 
payment  of  the  above  note  according  to  its  terras,  the  said 
J.  M.  P.  and  C.  P.,  his  wife,  executed  and  delivered  to  this  de- 
fendant their  certain  mortgage  deed  on  the day  of , 

18 — ,  and  thereby  conveyed  to  this  said  defendant  the  real 
estate  described  in  the  petition  of  the  plaintiff. 

On  the day  of  ,  18 — ,  at o'clock  — .  M.,  said 

mortgage  deed  was  received  by  the  recorder  of county, 

Ohio,  to  be  by  him  entered  of  record,  and  was  recorded  by 

him  on  the day  of ,  IS — ,  in  volume ,  page , 

of  the  records  of  mortgages  of  said  county.  Said  mortgage 
deed  contains  a  condition,  the  substance  of  which  is  that  if 
the  said  J.  M.  P.  should  pay  the  above-described  note  accord- 
ing to  its  terms  and  the  constitution  of  said  The  H Build- 
ing and  Loan  Association,  then  said  conveyance  should  be  void. 
Said  mortgage  deed  has  become  absolute.  The  said  defend- 
ant further  says  that  said  mortgage  deed  is  the  first  and  best 
lien  on  said  premises,  and  it  denies  the  pJlegation  of  plaintiff's 
petition  that  said  lien  is  subordinate  to  the  lien  of  plaintiff's 
mortgage.  Wherefore  the  said  defendant,  the  H Build- 
ing and  Loan  Association,  prays  the  court  to  find  the  amount 
due  it  from  the  said  defendant  J.  M.  P.,  and  that  unless  the 
said  J,  M.  P.  pay  or  cause  to  be  paid  to  it  the  amount  so 
found  to  be  due,  an  order  of  sale  issue  directed  to  the  sheriff 
of  this  county,  commanding  him  to  appraise,  advertise  and 
sell  said  premises  according  to  law,  and  apply  the  proceeds  of 
such  sale  to  the  payment  of  its  claim  against  said  J.  M.  P., 
and  for  all  such  further  relief  as  it  may  be  entitled  to. 

X.  &  M.,  Attorneys,  etc. 


§  598.]  FORECLOSUKE    OF    MORTGAGES.  551 

FORECLOSURE    OF   CHATTEL   MORTGAGE. 

Sec,  598.    Actions  to  foreclose  chattel  mortgages.— It 

is  not  necessary  here  to  discuss  at  length  the  law  upon  the 
subject  of  chattel  mortgages,  but  onh^  a  few  incidental  mat- 
ters which  may  seem  pertinent  to  proceedings  in  foreclosure. 
In  Ohio  a  mortgagee  of  chattels  becomes  the  general  owner 
thereof.  Where  the  mortgaged  property  is  left  in  the  pos- 
session of  the  mortgagor  under  a  power  of  sale,  the  trans- 
action is  looked  upon  with  suspicion,  and  is  considered  void 
as  against  creditors.^  This  has  been  modified,  however,  to 
the  extent  that  such  a  stipulation  in  a  mortgage  is  not  re- 
garded as^j)^r  se  fraudulent  and  void,  the  question  of  the  good 
faith  of  the  mortgagor  being  left  to  the  determination  of  a 
jury.-  There  are  certain  statutory  provisions  which  must  be 
observed  to  make  a  valid  chattel  mortgage,  such  as  filing  and 
verifving.^  The  mortgage  must  have  indorsed  upon  it  a  state- 
ment under  oath  of  the  amount  of  the  claim,  that  it  is  just, 
and  given  to  secure  the  payment  of  money,  or,  if  an  indem- 
nity mortgage,  the  liability  which  it  is  given  to  secure  must 
be  set  forth.^  A  mortgage  given  to  indemnify  the  mortgagee 
against  any  liability  is  void  as  against  creditors  of  the  mort- 
gagor, if  it  does  not  contain  a  true  statement  under  oath  of 
the  liability.'  A  defect  in  the  statement  cannot  be  cured  by 
any  conditions  contained  in  the  mortgage,  unless  reference 
thereto  is  made.^  It  has  been  held  that  an  unrecorded  mort- 
gage, where  recording  is  necessary,  which  is  free  from  fraud, 
creates  a  valid  lien  after  the  death  of  the  mortgagor,  as  against 
the  administrator,  heirs  or  general  creditors.'  And  so  a  mort- 
gage is  void  as  against  execution  creditors  who  have  levied  an 
execution  before  the  mortgage  is  filed,  although  the  mortgage 
was  executed  before  the  levy  of  the  execution.'^  A  joint  mort- 
gage given  by  several  persons,  living  in  different  townships, 

1  Brown  V.  Webb,  20  O.  389;  Free-  ^r.  s,,  sec.  4154;  In  re  Biocamp, 

man  v.  Rawson,  5  O.  S.  1 ;  Harmau  2  O.  C.  C.  372. 

V.    Abbey,   7  O.   S.   218 ;    Collins  v.  o  Blandy  v.  Benedict,  43  O.  S.  295. 

Meyer,  16  O.  S.  547.  ^  Blandy  v.  Benedict,  42  O.  S.  295 ; 

-  Kleine  v.  Katzeuberger,  20  O.  S.  Gardiner  v.  Parmalee.  31  O.  S.  551 ; 

1 10  (1870).  Haues  v.  Titfau y,  25  O.  S.  549. 

'  R.  S.,  sec  4154  '  Martin  v.  Ogdeu,  41  Ark.  18(>. 

sCass  V.  Roth.. Kin,  42  O.  S.  380. 


552  FORECLOSUKE    OF    MORTGAGES.  [§  598. 

must  be  filed  in  all  the  townships  where  the  several  owners 
reside.^  The  mortgage  to  be  valid  must  necessarily  be  filed 
vs^ith  the  proper  officer,^  It  must  be  filed  with  the  clerk  of 
the  township  where  the  mortgagor  resides  at  the  time  of  the 
execution.  If  a  resident  of  the  township  where  the  office  of 
the  recorder  of  the  county  is,  then  it  should  be  filed  with  the 
recorder.  If  a  non-resident  of  the  state,  then  it  should  be 
filed  with  the  township  clerk  of  the  township  where  the  prop- 
erty is  situated.^  To  preserve  the  lien  the  statutory  require- 
ment* must  be  complied  with,  and  the  same  must  be  refiled 
within  thirty  days  next  preceding  the  expiration  of  one  year. 
A  refiling  before  the  commencement  of  the  thirty  days  men- 
tioned in  the  statute  will  not  be  sufficient.^  The  validity  of 
a  morto-ao-e  is  not  revived  by  havinof  it  reverified  and  refiled 
after  the  expiration  of  the  3^ear  as  against  creditors  who  have 
taken  liens  in  the  meantime." 

Other  questions  as  to  the  right  of  different  mortgagees  arise 
where  there  has  been  some  defective  filing  or  refiling,  which 
depend  entirely  upon  notice.  The  lien  of  a  defectively  filed 
mortgage  is  prior  to  a  mortgage  which  has  been  subsequently 
filed  with  actual  knowledge  of  the  former  mortgage.^  If  a 
mortgagor  fails  to  refile  his  mortgage  within  the  time  pre- 
scribed by  statute,  and  another  person  files  a  mortgage  before 
the  prior  mortgage  is  filed,  actual  notice  by  such  subsequent 
mortgagee  is  necessary  to  defeat  his  mortgage.^  The  rem- 
edy which  a  mortgagee  may  pursue  for  the  enforcement  of 
his  rights  is  optional.  He  may  prosecute  an  action  at  law 
for  the  recovery  of  the  debt,  or  Avhere  the  mortgage  so  pro- 
vides he  ma3%  if  no  objections  are  made  by  the  mortgagor, 
enter  and  take  possession  of  the  property  and  sell  the  same, 
applying  the  proceeds  to  the  payment  of  the  debt;^  or  if  pos- 
session of  the  goods  is  not  yielded  by  the  mortgagor,  the 
mortgagee  may  prosecute  an  action  in  replevin  for  the  recov- 

1  Aultman  v.  Guy,  41  O.  S.  598.  ^  Biteler  v.  Bakhvin,  43  O.  S.  125. 

-  R.  S.,  sec.  4150 ;  Wilson  v.  Lesslie,  « Cooper  v.  Koppes,  4?  O.  S.  625. 

20  O.  161 ;  Houk  v.  Condon,  40  O.  S.  ^  Whittaker  v.  Westfall,  2  O.  C.  C. 

569.  321. 

"R.   S.,   sec.   4151:    Curtis  v.  Mc-  «  Paine  v.  Mason,  7  O.  S.  19M;  Day 

Dougal,  26  O.  S.  66 ;  Houk  v,  Condon,  v.  Muuson,  14  O.  S.  488. 

supra.  3  Tyson  v.  Weber,  81  Ala.  470 ;  Bar- 

4  R.  S.,  sec.  4155.  rett  v.  Hart,  42  O.  S.  41. 


§  598.]  FORECLOSURE    OF    MORTGAGES.  563^ 

ery  of  the  same;^  or  he  may  prosecute  an  action  to  foreclose 
the  mortgage  as  an  ordinary  real-estate  mortgage.  The  latter 
is  the  more  appropriate  remedy,  and  avoids  many  diflBculties 
which  may  arise  in  the  action  of  replevin.  It  is  said  that  he 
may  pursue  all  civil  remedies  at  the  same  time.^  The  remedy 
by  foreclosure  does  not  seem  to  have  been  pursued  to  any  very 
great  extent  in  Ohio,  but  rather  the  action  of  replevin  has 
been  adopted.  For  that  reason  we  are  not  aided  by  decisions 
in  Ohio  as  to  the  method  of  procedure  in  foreclosing  a  mort- 
gage, with  which  remedy  only  we  are  here  concerned.  The 
reason  for  the  scarcity  of  decisions,  however,  may  be  the 
fact  that  the  power  of  sale  given  in  the  mortgage  has  proven 
a  more  speedy  means  of  effecting  the  mortgagee's  rights  bar- 
ring the  mortgagor's  equity  of  redemption,  which  has  to  a 
great  extent  superseded  the  action  to  foreclose.^  The  power 
to  sell  being  uppermost  in  the  mind  when  the  mortgagor  re- 
fuses possession,  the  mortgagee  knowing  that  he  is  a  general 
owner  naturally  resorts  to  replevin.  In  view  of  a  most  excel- 
lent chapter  upon  foreclosure  of  chattel  mortgages  in  a  recent 
work,*  and  of  the  scarcity  of  material  in  Ohio,  any  extended 
discussion  here  seems  unnecessary.  Where  a  mortgagor  dies 
after  the  expiration  of  the  time  for  filing  a  mortgage  and  the 
property  is  taken  possession  of  and  sold  by  the  administrator, 
the  remedy  of  the  mortgagee  is  to  assert  a  lien  against  the 
fund  arising  from  the  sale  in  the  hands  of  the  administrator 
and  not  an  action  to  foreclose.^ 

In  Iowa,  where  the  mortgagor  of  chattels  dies,  the  mort- 
gagee may,  for  a  breach  of  its  conditions,  proceed  to  fore- 
close notwithstanding  the  debt,  and  is  not  required  to  submit 
to  the  request  of  the  administrator  to  adjust  and  determine 
his  rights.^  A  court  of  equity  has  power  to  decree  the  fore- 
closure of  chattel  mortgages  where  it  has  jurisdiction  over 
the  parties  and  of  the  subject-matter,  even  though  no  provis- 
ion is  made  therefor  by  statute.'    It  is  not  necessary  to  make 

1  See  chapter  on  Replevin,  sec.  1078.        6  Cocke  v.  Montgomery,  75  Iowa, 

2  Cobbey  fui  Chattel  Mortgages,  sec.    259. 

947.  "Bank  v.  Davidson,   18  Oreg.  57; 

3  Briggs  V.  Oliver,  68  N.  Y.  336.  S.  C,  22  Pac.  Rep.  517 ;  McCauley  v. 

4  Cobbey  on  Cliattel  Mortgages,  Rogers,  104  111.  578 :  Briggs  v.  Oliver, 
ch.  36.  68  N.  Y.  336 ;  Charter  v.  Stevens,  8 

5  Whitply  V.  Weber,  2  O.  C.  C.  336.  Denio,  35. 


554:  F.>KKCLOSL'liE    OF    MORTGAGES.  [-^  098. 

any  demand  upon  the  mortgagor  or  purchaser,^  nor  upon  a 
subsequent  mortgagee,  before  bringing  a  suit  to  foreclose.^ 
The  petition  must  contain  an  averment  that  at  the  time  the 
mortgage  was  executed  the  chattels  mortgaged  were  the  prop- 
erty of  the  mortgagor.*  A  petition  asking  judgment  upon  a 
note,  sale  of  the  chattel  property  mortgaged,  and  the  applica- 
tion of  the  proceeds  to  the  payment  of  the  debt,  sufficiently 
shows  that  foreclosure  is  asked  for  although  the  word  fore- 
closure is  not  used,*  Mistakes  may,  by  ]>roper  allegations  in 
the  petition,  be  corrected  as  in  other  cases,  and  the  mortgage 
foreclosed  as  reformed.  The  right  to  foreclose  a  mortgage  ex- 
ists where  there  is  a  breach  of  covenant  to  insure.'  In  case 
of  failure  of  the  mortgagee  to  establish  his  right  to  equitable 
relief  he  cannot  have  a  judgment  for  the  payment  of  the 
debt.  A  release,  however,  of  the  mortgage  by  the  mortgagee 
will  not  deprive  him  of  his  right  to  sue  for  and  collect  the 
debt.®  An  action  of  debt  will  not  lie  on  an  ordinary  chattel 
mortgage  which  does  not  contain  any  promise,  undertaking 
or  covenant  to  pay  the  money .'^  A  decree  of  foreclosure  may 
be  had  when  the  court  has  jurisdiction  of  the  parties,  even 
though  the  mortgaged  property  should  not  be  within  the 
jurisdiction.  In  ordering  the  sale  of  the  property  the  rules 
governing  ordinary  sales  will  be  observed;  but  where  these 
rules  cannot  be  applied  without  defeating  the  ends  of  jus- 
tice they  will  be  disregarded.^  The  court  in  such  a  case  will 
require  the  defendant  to  pay  the  value  of  the  property.^  There 
can  be  no  warranty  of  title  where  the  sale  of  the  property  is 
made  by  the  mortgagor  by  virtue  of  the  power  given  him  in 
the  mortgage.^"  The  same  rule  prevails  as  to  foreclosure  of 
chattel  as  in  real-estate  mortgages,  where  the  debt  is  payable 
in  instalments.  Upon  default  of  payment  of  one  instalment 
the  right  to  foreclose  for  the  whole  debt  accrues ;  nor  is  de- 
mand for  the  instalment  due  a  prerequisite  to  the  action.^^  A 
creditor  of  the  mortgagor  may  seize  by  legal  process  the  in- 

1  Zehner  v.  Aultman,  74  lud.  24.  6  Rawson  v.  Taylor,  30  O.  S.  389. 

2  Means  v.  Worthington,  33  O.  S.  "Larmon  v.  Carpenter,  70  111.  549. 
622.  3  Means   v.  Worthington,  23  O.  S. 

3  Edwards  V.  Trittipo,  62  Ind.  121.  632. 

4  Graham    v.    Blein,   3   Wyo.   746  ?  Gaar  v.  Hurd,  92  Jll  315, 
(1892),  10  Harris  v.  Lynn,  25  Kan.  281. 

6Leland  v.  Collver,  34  Mich.  418,  "  Maddox  v,  Wyraan,  92  Cal.  674.  . 


§§  599,  600.]  FORECLOSUKE    OF   MORTGAGES.  555 

terest  of  such  mortgagor  in  the  property,  and  may  then  sus- 
tain an  action  against  the  mortgagee  to  redeem  the  property. 
In  an  action  of  replevin  by  such  mortgagor  against  the  officer 
holding  the  property,  such  creditor  may  set  up  his  claim  by 
way  of  cross-petition,^ 
See.  599.  Petition  to  foreclose  chattel  mortgage. — 

1.  Plaintiff  says  that  there  is  due  him  from  said  defendant 

on  a  jn-omissory  note  the  sum  of dollars,  with  interest 

from  the day  of ,  18 — ,  a  copy  of  which  note  with 

all  credits  and  indorsements  thereon  is  as  follows:  \_Copy  of 
note.] 

2.  For  a  second  cause  of  action  plaintiff  adopts  so  much  of 
the  first  cause  of  action  hereinbefore  set  forth,  beginning  with 

the  word  " "  in  the  first  line   thereof,  ending  with  the 

■word" "in  the line  thereof,  the  same  as  if  fully 

here  rewritten,  and  says  that  on  the day  of ,  18 — , 

in  order  to  secure  the  'payment  of  the  said  promissory  note 
set  forth  in  the  first  cause  of  action,  the  said  defendant  G.  W. 
duly  executed  and  delivered  to  this  plaintiff  his  chattel  mort- 
gage, thereby  conveying  to  plaintiff  the  following  chattel 
property,  to  wit:  {^Deseription  of  property  ?\ 

The  said  chattel  mortgage  provided  that  if  the  said  G.  W. 
should  well  and  fully  pay  to his  certain  promis- 
sory notes  for  the  sum  of dollars,  dated .  due -, 

payable  to ,  with  interest  at  ,  then  the  said 

chattel  mortgage  to  be  void ;  otherwise  to  be  and  remain  in 
full  force  and  virtue  in  law. 

The  said  chattel  mortgage  was  on  the day  of ,  18 — , 

at o'clock  —  M.,  duly  deposited  and  filed  in  the  office  of 

the  recorder  of couuty,  the  said  mortgagor  being  a  resi- 
dent of  township,  where  the  office  of  the  county  re- 
corder is  kept. 

The  defendant  has  wholly  failed  to  pay  the  said  promis- 
sory note  set  forth  in  said"^  first  cause  of  action,  or  any  part 
thereof,  and  by  reason  whereof  the  condition  of  said  mortgage 
chattel  has  been  broken. 

Wherefore  plaintiff  asks  judgment  aoainst  the  said  defend- 
ant in  the  sum  of  dollars,  with  interest  at ,  from 

,  and  that  said  property  may  be  ordered  sold  and  the 

proceeds  thereof  applied  to  payment  of  said  plaintiff's  claim, 
and  for  such  other  relief  as  is  equitable. 

DEED  DECLARED  A  MORTGAGE. 

Sec.  600.  Action  to  declare  a  deed  a  mortgage.—  A  deed 
absolute  in  form  which  is  in  fact  intended  to  secure  the  pay- 
ment of  money  due  from  the  maker  to  the  grantee,  in  which 

1  Morgan  v.  Spangler.  20  O.  S.  38. 


556  FORECLOSURE   OF   MORTGAGES.  [§  601. 

there  is  an  agreement  by  the  grantee  to  reconvey  property  to 
the  grantor,  is  considered  an  equitable  and  not  a  legal  mort- 
gage, and  the  statute  as  to  the  recording  of  mortgages '  does 
not  govern  its  validity.-  The  intention  of  the  parties  is  the 
criterion  in  the  determination  of  this  question,  and  if  the 
deed,  though  absolute  in  form,  is  intended  to  secure  pay- 
ment of  mone}^,  and  the  relation  of  debtor  and  creditor 
exists  between  the  grantor  and  grantee  at  the  time  of  its  exe- 
cution, it  will  be  treated  as  a  mortgage.^  It  may  be  shown 
by  the  grantee  that,  although  originally  a  mortgage,  the  equity 
of  redemption  has  been  released  by  a  parol  agreement.*  A 
deed  conveying  land  to  a  trustee  as  collateral  security  for  the 
payment  of  a  debt,  with  a  condition  that  it  shall  be  void  on 
the  payment,  with  power  in  the  trustee  to  sell  the  land  and 
pay  the  debt  in  case  of  failure  to  pay  the  indebtedness,  is  a 
morto-ao-e.'*  Where  a  contract  is  made  and  delivered  at  the 
time  of  execution  and  delivery  of  a  deed,  which  provides  that 
the  grantee  will  reconvey  the  premises  Avithin  a  specified  time 
upon  repayment  of  the  purchase-money  with  interest,  the  deed 
will  be  declared  a  mortgage.*  An  action  may  be  maintained 
to  declare  a  deed  a  mortgage,  both  against  the  grantee  and 
parties  who  have  purchased  the  premises  from  him.'^ 

Sec.  601.  Petition  to  declare  deed  absolute  on  its  face  a 
mortgage,  where  there  was  a  verbal  agreement  to  recon- 
vey.— 

That  plaintiff  on  the day  of ,  18 — ,  was  the  owner 

in  fee-simple  of  the  premises  hereinafter  described. 

That  on  or  about ,  18 — ,  the  said  E.  D.  D.,  deceased^ 

signed  a  note  with  this  plaintiff,  as  surety,  payable  to  one  F.  E., 

1 R.  S.,  sec.  4133.  Harrison    v.  Trustees,  12   Mass.  456 ; 

2  Kemper  v.  Campbell,  44  O.  S.  210 ;  Trull  v.  Skinner,  17  Pick.  213 ;  Green 
R.  a,  sec.  4134.  t.  Butler,  26  Cal.  596. 

3  Slutz  V.  Desenberg.  28  O.  S.  371 ;  5  Woodruflf  v.  Robb,  19  O.  312. 
Woodruff  V.  Robb,  19  O.  212.  Where  "  Marshall  v.  Stewart,  17  O.  856. 
mortgages  are  in  effect  and  form  ^  Kuhn  v.  Rumpp,  46  Cal.  299.  And 
converted  into  deeds  absolute,  the  a  purchaser  assuming  payment  of  a 
form  of  the  conveyance  will  not  mortgage  is  a  proper  party  to  such 
change  their  nature  in  equity.  Wil-  action.  C.  S.  &  L.  Ass'n  v.  Kreitz,  41 
son  V.  Giddings,  28  O.  S.  554.  As  to  O.  S.  143.  Under  what  circumstances 
sale  of  grantor's  equity,  see  Baird  v.  a  deed  will  be  declared  a  mortgage. 
Kirkland,  8  O.  21.  see  Coleman  v.  Miller,  6  W.  L.  B.  199. 

4  Shaw  V.  Walridge,  33  O.  S.  1; 


§  602.]  FORECLOSURE    OF    MORTGAGES.  557 

which  said  note  was  for  an  indebtedness  due  from  plaintiff  to 
said  E.  That  in  order  to  secure  the  said  E.  D.  D.,  and  to 
save  him  harmless  ao^ainst  any  loss  that  might  or  could  occur 
to  him  by  reason  of  his  having  signed  said  note  as  aforesaid, 
this  plaintiff,  on  the day  of ,  18 — ,  executed  and  de- 
livered to  the  said  E.  D.  D.,  deceased,  a  deed  absolute  upon 
its  face,  for  a  pretended  consideration  therein  expressed  of 

the  sum  of  $ ,  and  thereby  conveyed  to  the  said  E.  D.  D. 

the  following  real  estate  situate  in  the  county  of ,  in  the 

state  of ,  and  in  the  city  of ,  bounded  and  described 

as  follows:  [DesGription.'] 

That  said  deed  was  intended  as,  was  and  is  in  fact,  a  mort- 
gage; that  the  consideration  therefor  was,  as  hereinbefore 
stated,  to  indemnify  the  said  E.  D.  D.,  deceased,  against  any 
loss  that  might  or  could  occur  to  him  by  reason  of  his  becom- 
ing surety  on  the  note  aforesaid. 

That  at  the  time  of  the  making  and  delivery  of  said  deed  to 
the  said  E.  D.  D.,  deceased,  this  plaintiff  and  'the  said  E.  D.  D. 
entered  into  an  agreement  and  contract,  not  in  writing,  to 
the  effect  that  if  this  plaintiff  should  pay  the  note  so  as 
aforesaid  made  b}^  him  to  the  said  F.  E.,  upon  which  the  said 
E.  D.  T>.  became  surety,  then  the  said  E.  D.  D.,  deceased, 
should  thereupon  reconvey  to  this  plaintiff  the  aforesaid 
premises,  which  said  verbal  agreement  and  said  deed  were  a 
part  of  the  same  transaction,  (a) 

Plaintiff  further  says  that  he  paid  the  said  note  and  indebt- 
edness so  as  aforesaid  due  from  him  to  the  said  F.  E.,  upon 
which  the  said  E.  D.  D.  became  surety,  and  thereby  no  loss  or 
damage  occurred  to  the  said  E.  D.  D.,  deceased,  and  that 
plaintiff  is  therefore  entitled  to  have  said  deed  canceled  and 
said  premises  reconveyed  to  him. 

Plaintiff  further  says  that  on  the day  of ,  18 — ^ 

and  at  divers  other  times,  he  applied  to  said  E.  D.  D.  for  a  re- 
conveyance to  him  of  said  premises,  which  said  defendant 
failed  and  refused  to  make. 

Plaintiff  further  prays  that  said  deed  of  conveyance  may  be 
declared  to  be  a  mortgage,  that  the  same  may  be  canceled 
and  held  for  naught,  and  that  the  ownership  of  said  premises 
may  be  declared  to  be  in  this  plaintiff  [or,  that  said  defendant 
be  ordered  to  reconvey  said  premises  to  this  plaintiff],  and 
for  such  other  relief  as  is  proper. 

Note. —  The  decree  may  operate  as  a  couvej-^ance.     R.  S.,  sec.  5318. 
(a)  This  may  be  changed  where  there  is  an  agreement  in  writing,  or  where 
defendant  has  received  rents  and  profits. 

Sec.  602.  Heforiiiation  of  mortgages. —  Any  mistake  in 
description  or  execution  of  a  mortgage  may  be  corrected  in 
actions  to  foreclose,  and  the  lien  will  attach  as  of  the  date  of 


558  FOKECLOSUKE  OF  MORTGAGES.  [§  G03. 

the  execution,  and  not  from  the  date  of  reformation.^  Such 
a  description  will  be  corrected  not  only  against  the  mortgagor, 
but  also  as  against  attaching  judgment  creditors  of  the  mort- 
gagee and  purchasers  under  them  with  notice  of  such  mistake.^ 
A  mistake  in  the  name  of  a  party  in  the  mortgage  does  not 
affect  its  validity.^  A  mistake  in  the  execution  of  a  mortgage 
by  having  only  one  subscribing  witness  thereto  does  not  render 
the  same  invalid  between  the  i)arties.  It  may  be  reformed 
in  equity,  but  not  so  as  to  defeat  a  judgment  lien/  A  mort- 
gage which  fails  to  describe  the  land  intended  to  be  mort- 
gaged may  be  reformed  at  any  time  while  the  title  remains 
in  the  hands  of  the  mortgagor,^  but  it  cannot  be  reformed 
and  foreclosed  against  a  subsequent  honajide  purchaser,  unless 
he  has  notice  of  the  mistake.^  Attaching  creditors  of  the  mort- 
gagor cannot  successfully  object  to  reformation.'  In  fore- 
closure proceedings,  where  reformation  is  sought  upon  any 
ground,  the  evidence  should  clearly  show  that  a  mistake  was 
made.^ 

Sec.  603.  Action  to  redeem  mortgage. —  The  right  of  a 
mortgagor  or  those  claiming  under  him  to  compel  a  redemp- 
tion of  the  mortgage  exists  now  as  formerly.  AVhere  the 
mortgage  is  given  to  secure  purchase-money,  the  mortgagor 
has  the  same  time  within  which  to  redeem  as  if  it  were 
given  for  some  other  consideration."  A  guarantee  who  has 
not  been  made  a  party  to  proceedings  in  foreclosure  does  not 
lose  his  right  to  redeem.^"  A  wife  signing  with  her  husband 
may  upon  the  death  of  her  husband  redeem  the  mortgage,  and 

1  Adams  v.  Stutzman,  7  Am.  Law  ^  Bartlett  v.  Patterson,  10  W.  L.  B. 
Rec.    76  (Holmes    Co.    C.   P.,  1878);     367. 

Davenport  v.  Sovil,  6  O.  S.  459.  »  Robinson  v.  Fife,  3  O.  S.  551  (1854) ; 

2  Strang  v.  Beach,    11   O.   S.   283;  Kerr  v.   Lydecker,  51  O.  S. — ;  31 
Timmerman  v.  Howell,  2  O.  C.  C.  27 ;  W.  L.  B.  290.     See  ante,  sec.  572. 
Wall  V.  Arlington,  13  Ga.  88:  White-  lOChilds    v.    Childs,    10  O.    S.   389 
head  v.  Brown,  18  Ala.  682.  (1859) ;   Hess  v.  Feldkamp,   2  Disn. 

3Dodd  V.  Bartholomew,  44  O.    S.  332(1858);  Stover  v.  Bounds,  1  O.  S. 

171.  107(1853).   And  the  right  may  be  exer- 

4  White  V.  Denmau,  16  O.  59 ;  1  O.  S.  cised  notwithstandmg  the  considera- 
110.  tion  of  the  note  was  illegal.    Cowlson 

5  Bush  V.  Bush,  33  Kan.  556.  v.  Ragei,  14  O.  38.     It  may  be  exer- 

6  Pence  v.  Armstrong,  95  Ind.  191.  cised  at  any  time  before  foreclosure. 

7  Bush  V.  Bush,  supra.  Frischee  v.  Kramer,  16  O.  125  (1847)i 


§  603.J  ^      FORECLOSURE    OF    MORTGAGES.  559 

is  not  barred  by  a  foreclosure  against  her  husband  during  his 
life-time  to  which  she  was -not  a  party.^  An  heir  of  an  owner 
of  redemption,  after  an  action  has  been  revived  against  him 
and  decree  of  foreclosure  and  sale  had,  cannot  maintain  an 
action  against  the  purchaser  to  compel  the  allowance  of  re- 
demption.2  A  subsequent  purchaser  from  a  mortgagor  can- 
not be  allowed  to  redeem  against  a  purchaser  under  a  judg- 
ment on  an  older  mortgage,  even  though  made  a  party  to  the 
proceeding.*  A  petition  to  redeem  mortgaged  premises,  charg- 
ing that  the  mortgagor  fraudulently  stood  by  and  witnessed 
a  purchaser  from  a  mortgagee  making  improvements,  and  con- 
cealed his  lien,  is  good  as  against  a  demurrer.^  Time  may  be 
given  a  mortgagor  in  a  decree  of  foreclosure  within  which  to 
redeem,  which  is  within  the  discretion  of  the  court.* 

1  McArthur  v.  Franklin,  5  O.  S.  485 ;  *  Carter  v.  Longworth,  4  O.  384. 

16  O.  S.  193.  5  West  t.  Morris,  3  Disn.  415.    And 

2Hentz  V.  Ward,  1  C.  S.  C.  R.  387  this  time  may  be  extended.     Stagg 

(1871).  V.  Harbeson,  2  C.  S.  C.  R  33  (1870). 

3Dennison  v.  Allen,  4  O.  495 


CHAPTER  38. 


FRAUD    AND    DECEIT  —  CONSISTING    OF    FALSE    REPRESENTA- 
TIONS AND  CONCEALMENTS. 


Sec.  604.  Parties  to  actions  for  fraud. 

605.  Limitations  to  actions  for 

fraud. 

606.  Remedy    and    action    for 

fraud  and  deceit 

607.  Principles  of  pleading. 

608.  Action  for  deceit  or  false 

representation. 

609.  Petition   for   fraud   in  ob- 

taining goods  under  con- 
tract induced  by  fraudu- 
lent representations. 

610.  Petition  for  fraudulent  con- 

ceaimeut  in  sale  of  prop- 
erty. 

611.  Petition  to  declare  subscrip- 

tion to  the  capital  stock 
of  corporation  null  and 
void,  because  of  its  being 
procured  by  false  repre- 
sentations, and  for  the  re- 
covery of  the  amount  paid 
thereon. 


Sec.  612.  Petition  for  false  represen- 
tation to  purchaser  of  real 
estate. 

613.  Petition  for  false  represen- 

tations as  to  quality  in 
sale  of  goods. 

614.  Petition  to  have  judgment 

by  justice  of  peace,  for 
property  fraudulently  ob- 
tained, declared  a  charge 
upon  real  estata 

615.  Petition  for  false  represen- 

tations in  exchange  of 
property. 

616.  Petition  for  false  represen- 

tations made  to  induce 
credit 

617.  Attacking  judgments  and 

decrees  for  fraud. 

618.  Defenses    to    actions    for 

fraud. 

619.  Defenses  to  actions  for  false 

representations. 

620.  Answer  of  fraud  in  procur- 

ing a  contract 


Sec.  604.  Parties  to  actions  for  fraud. —  A  person  who  is 
not  a  party  to  an  instrument  cannot  assail  it  on  the  ground 
of  fraud  and  recover  money  paid  thereon,  although  he  may 
have  caused  the  same  to  have  been  executed  between  others.' 
A  corporation  is  liable  for  fraudulent  conduct  of  its  agents 
in  the  same  manner  as  if  such  agents  had  been  acting  for 
private  persons.^  A  trustee  cannot  maintain  an  action  for 
deceit  practiced  upon  his  cestui  que  trustent,  nor  can  he  sus- 

1  Insurance  Co.  V.  Wright,  33  O.  S.     113;    2  Disn.  302;    Bartholomew  v. 
533.  Bcntley,  15  O.  659. 

^Nugent  v.  Railroad  Co.,  3  W.  L.  G. 


I 


g  605.]  FRAUD  AND  DECEIT.  561 

tain  an  equitable  action  on  the  ground  of  fraud.^  In  every 
such  case  the  person  defrauded  is  the  proper  party  plaintiff.'^ 
A  wife  Avho  executes  a  deed  with  her  husband  which  is  after- 
wards fraudulently  changed  into  a  mo.  .gage  without  her 
knowledge,  not  being  a  party  to  such  fraud,  may  still  assert 
her  right  of  dower  in  the  premises.''  One  giving  credit  to  an- 
other on  the  faith  of  a  letter  of  credit  directed  to  a  person 
other  than  the  one  giving  credit  cannot  maintain  an  action 
for  deceit,  though  the  representations  in  the  letter  are  false.* 
Where  two  persons  are  induced  by  false  representations  to 
make  a  purchase  of  hogs  which  they  divide  between  them  im- 
mediately upon  purchase,  either  purchaser  may  maintain  an 
action  for  the  fraud  and  deceit  against  the  vendor  without 
joining  or  making  his  co-purchaser  a  party.'  The  interest  or 
cause  of  action  of  such  purchasers  is  several,  even  though  the 
representations  were  made  to  them  jointly,  thus  enabling 
them  to  bring  separate  actions.^  It  was  not  proper  at  com- 
mon law,  nor  is  it  under  the  code,  to  join  a  party  who  has 
neither  legal  nor  beneficial  interest  in  the  subject-matter  of 
the  suit.^  If  such  a  vendor  has  the  misfortune  to  be  com- 
pelled to  answer  a  claim  for  damages  at  the  suit  of  the  other 
injured  purchaser,  the  former  is  himself  responsible  for  this 
result.  Whatever  the  ancient  rules  were,  the  law  in  this  class 
of  actions  has  been  modified  by  modern  decisions.^ 

Sec.  605.  Limitatious  to  actions  for  fraud, —  An  action 
for  relief  on  the  ground  of  fraud  must  be  prosecuted  within 
four  years  from  its  commission,  though  the  right  does  not 
accrue  until  the  fraud  has  been  actually  discovered.**  Lapse 
of  time  is  not  available  where  a  person  has  been  misled  by 
misrepresentations,  or  kept  in  ignorance  of  rights  bj'-  one 
who  oug-ht  to  have  disclosed  the  same.^"     Xor  will  it  bar  the 

1  Raymond  v.  Railway  Co.,  21  W.  ^  Eccleston    v.   Clipsham,   1   Sand. 

L.  B.  103.  154 :  Duncan  v.  Willis,  supra. 

2 Raymond  v.  Railway  Co.,  supra;  'Duncan  v.  Willis,  sujira;  O.  Code, 

Bigelow  (2d  ed.),  214 ;  Dickinson  v.  sec.  5007. 

Seaver,    44    Mich.     624;     Foster    v.  « Duncan  v.  Willis,  sw^ira. 

Wightman,  123  Mass.  100.  ^  o.  Code.  sec.  4982.     This  applies 

3  Conover  v.  Porter,  14  O.  S.  450.  to  all  classes  of  actions  for  fraud. 

*  McCracken  v.  West,  17  O.  16.  i"  Williams  v.  Presbyterian  See,  1 

5  Duncan  v.  Willis,  51  O.  S.  — ;  32  O.  S.  478. 
W.   L.   B.   102.     See,   also,  Wells  v. 
Cook,  16  O.  S.  67. 
36 


562  FKAUD    AND    DECEIT.  [§  606. 

rights  of  an  infant  or  a  cestui  que  truM^  against  whom  the 
statute  does  not  begin  to  run  until  his  discovery  of  the 
fraud.*  If  the  petition  states  a  cause  of  action,  and  contains 
an  averment  that  the  fraud  was  not  discovered  until  within 
four  years  before  the  suit  was  beo^un,  an  answer  charo-ino^  that 
the  cause  of  action  did  not  accrue  within  four  years  before 
suit  because  the  same  was  not  committed  within  that  time  is 
insufficient.''  It  has  been  held  that  a  petition  which  alleges 
that  plaintiff  did  not  discover  the  alleged  fraud  until  within 
four  years  before  suit  brought,  as  against  a  demurrer  states 
in  fact  that  the  same  could  not  have  been  discovered  by  the 
exercise  of  reasonable  diligence.  Such  a  petition,  if  contro- 
verted, ought  to  be  met  by  an  answer  denying  plaintiff's  igno- 
rance of  the  facts  constituting  fraud.  It  is  the  actual  discovery 
of  fraud,  or  what  might  by  the  exercise  of  due  diligence  have 
been  discovered,  which  puts  the  statute  in  operation.' 

Sec.  606.  Remedy  and  action  for  fraud  and  deceit. —  Fraud 
consists  of  any  misrepresentation  or  concealment  of  a  material 
fact.^  The  forms  adopted  in  its  commission  are  not  impor- 
tant. Schemes  of  fraud  may  be  so  cunningly  devised  as  to 
blind  the  eye  of  justice,  but  when  discovered  should  not  es- 
cape condemnation  and  reprobation.  It  is  therefore  neces- 
sary to  look  beneath  the  surface,  and,  no  matter  in  what  form 
the  same  may  appear,  grant  relief^  One*  who  has  been 
defrauded  may  elect  to  pursue  one  of  three  remedies.  He 
may  restore  or  offer  to  restore  what  he  has  received,  elect  to 
rescind  the  contract,  and  sue  at  law  for  whatever  he  has 
parted  with ;  or  he  may,  without  restoring  what  he  has  re- 
ceived, sue  for  a  rescission,  in  which  case  he  must  allege  that 
he  is  willing  and  ready  to  restore ;  or,  he  may  elect  to  stand 
upon  the  contract  and  sue  for  damages  suffered  by  reason 
thereof.^  An  action  for  fraud  and  deceit  may  be  brought, 
notwithstanding   the  death   of   the   person   liable   therefor.'' 

iLong  V.  Mulford,  17  O.  S.  485;  5  Rice  v.  Manley,  66  N.  Y.  87;  Beet- 
Carlisle  V,  Foster,  10  O.  S.  198.  hoven,  etc.  Co.  v.  McEwen,  59  N.  Y. 

2  Maple  V.  Railroad  Co.,  40  O.  S.  313.  Super.  7  (1892). 

s  Stephenson  v.  Reeder,  2  W.  L.  B.  e  Thomas  v.  Dickinson.  22  N.  Y.  S. 

335  (Cin.  Super.  Court,  1878);  Piatt  v.  260;  s.  C.  67  Hun,  350;  Railroad  Co. 

Longworth,  27  O.  S.  198.  t.  Steinfeld,  42  O.  S.  455-6. 

<Griel  v.  Lomax,  94  Ala.  641.  '  R  S.,  sec.  4975. 


§  606.]  FKAUD  AND  DECEIT.  563 

There  cannot  be  both  an  affirmance  and  a  disaffirinance  of  a 
contract.  A  vendor  cannot  rescind  a  contract  for  the  sale  of 
real  estate  on  the  ground  of  fraad  of  the  vendee,  and  retain 
the  property,  and  then  maintain  an  action  for  deceit  against 
the  vendee.^  Having  once  made  an  election  between  alterna- 
tive remedies  he  cannot  revoke  the  same.^  An  action  for 
fraud  and  deceit  must  be  founded  upon  an  existing  fact,  and 
cannot  be  based  upon  any  future  occurrence,  or  upon  an  act 
to  be  done;  and  the  party  charged  therewith  must  have  had 
knowledge  at  the  time.^  "Where  a  vendor  fraudulently  aids 
one  of  several  purchasers  to  buy,  such  purchasers  may,  on  dis- 
covering the  fraud,  elect  to  rescind  and  tender  a  reconvey- 
ance.'* To  set  aside  an  executed  agreement  there  must  be 
actual  fraud,®  and  in  order  to  give  rise  to  a  cause  of  action 
on  account  of  fraud  there  must  be  actual  damages.^  An  act 
maliciously  or  fraudulently  committed  will  not  furnish  a  ground 
of  action  if  it  be  not  of  itself  unlawful.^ 

A  judgment  against  one  of  two  persons  who  have  fraudu- 
lently procured  a  lien  upon  a  worthless  security  is  not  a  bar  to 
an  action  against  the  other  for  damages  sustained  by  reason  of 
his  participation  in  the  fraud.^  An  action  may  be  maintained 
against  a  debtor  who  fraudulently  represents  himself  insolvent, 
thereby  inducing  a  creditor  to  release  an  indebtedness  for 
a  sum  less  than  its  real  value.^  The  liability  of  one  commit- 
ting fraud  by  representation  is  measured  by  his  knowledge  of 
the  same.  If  he  makes  a  statement  which  he  does  not  know 
to  be  true,  and  which  influences  another  to  his  disadvantage, 
it  is  nevertheless  a  fraud. ^•^  But  if  the  representations  are  be- 
lieved to  be  true  and  there  is  reasonable  ground  for  such 


1  Roome  v.  Jennings,  21  N.  Y.  S.        *  Yeoman  v.  Lasley,  40  O.  S.  190. 
938.  sxugent  v.  Railroad  Co.,  2  Disn. 

2Degraw  v.  Elmore,  50  N.  Y.  1-3;  302. 
Kinney   v,  Keirnan,  49  N.   Y.    164;        ^  Roome  T.Jennings,  21    N.  Y.  S. 

Miller    v.    Barber,    66    N.    Y.     558;  938. 

Schiffer  v.  Dietz.  83  N.  Y.  300 ;  Strong        ^  Smith  v.  Bowler,  2  Disn.  153. 
V.  Strong,  102  N.  Y.  69.  *  Insurance  Co.  v.  Sch  idler,  130  Ind. 

3  Smith    V.    Bowler,    1    Uisn.    520.  214. 
A  statement  or  representation  made        ''  Edwards  v.  Owen,  15  O.  500. 
subsequent  to  the  execution  of  a  deed       i^  Nugent  t.   Railroad  Co.,  2  Disn. 

cannot    aflfect    the    title    conveyed.  302;  Bullitt   v.    Farrar,  42  Minn.  8; 

Williams  v.  Mears,  2  Disn.  604.  S.  C,  43  N.  W.  Rep.  566. 


564  FRAUD    AND    DECEIT.  [§  607. 

belief,  there  can  be  no  fraud  and  hence  no  recovery. ^  And 
where  representations  are  not  made  for  the  purpose  of  in- 
ducing another  to  act  upon  them  in  any  matter  affecting  his 
own  interest,  an  action  for  fraud  may  be  maintained  thereon.^ 
Proof  of  general  representations  by  which  others  than  plaint- 
iff were  defrauded  may  be  given  in  evidence.^  AVhere  a  per- 
son merely  undertakes  to  repeat  what  others  have  told  him, 
it  does  not  ordinarily  constitute  deceit  for  which  an  action 
will  lie.  So  where  representations  are  made  in  reference  to 
lands,  with  the  understanding  that  the  same  are  made  only 
upon  information  by  others,  there  is  no  liability  incurred  for 
a  loss  occasioned  to  the  party  relying  upon  them.*  A  trans- 
action with  a  person  who  is  either  an  imbecile  or  possessed 
of  a  weak  mind,  and  which  has  been  induced  by  fraud,  im- 
position or  undue  influence,  will  be  set  aside.'  The  collec- 
tion of  a  note  executed  by  reason  of  threats  of  a  groundless 
prosecution  will  be  restrained.^  A  combination  made  by  par- 
ties to  prevent  competition  at  a  sale  of  land  for  taxes,  with 
the  understanding  that  the  land  purchased  is  to  be  afterwards 
divided,  is  fraudulent  and  will  be  set  aside."  If  a  person  pur- 
chases goods  with  no  expectation  of  paying  for  them,  or  hav- 
ing no  reasonable  expectations  of  being  able  so  to  do,  the 
purchase  is  fraudulent,  and  the  goods  may  be  recovered  in 
proper  proceedings  by  the  seller.® 

Sec.  607.  Principles  of  pleading. —  A  general  averment  of 
fraud  is  not  sufficient.  Facts  must  be  set  forth  showing  what 
the  fraud  and  representation  consists  of,  to  enable  the  court  to 
determine  whether  or  not  there  is  any  legal  fraud  or  misrep- 
resentation such  as  will  constitute  a  cause  of  action.  A  sim- 
ple plea  that  an  act  was  committed  by  fraud  and  misrepre- 
sentation is  a  mere  legal  conclusion  and  not  the  statement  of 
a  fact.*     While  the  rule  requires  that  facts  constituting  fraud 

1  Taylor  v.  Leith,  26  O.  S.  428.  8  Talcott  v.  Henderson,  31  O.  S.  162 ; 

2  Wells  V.  Cook,  16  O.  S.  67.  Wilmot  v.  Lyon,  49  O.  S.  296. 

3  Edwards  v.  Owen,  15  O.  500.  » Derby  v.  Corlett,  1  Clev.  Rep.  210 ; 

4  Foreman  V.  Conipton,  4  W.  L.  B.  Williams  v.    Church,    1   O.   S.   478; 
489  (Cuyahoga  Co.  Dist.  Court,  1879).  Great  Western  Despatch  v.  Glenney, 

5  Tracey  V.  Sackett.  1  O.  S.  54-9.  10  Am.   Law   Rec.   572;    Butler    v. 

6  James  v,  Roberts,  18  O.  548.  Viele,  44  Barb.  166;  Libby  v.   Rose- 

7  Ludlow  V.  Little,  2  O.  504  krans,  55  Barb,  202 ;  West  v.  Wriglit. 


§  6U8.]  FKAUD  AND  DECEIT.  565 

must  be  set  forth,  yet  it  is  held  that  a  minute,  detailed  state- 
ment is  not  required. 1  It  is  not  necessary  to  employ  the 
words  "fraud"  or  "fraudulent"  to  characterize  a  transaction 
or  specify  the  ground  of  belief.-  The  rule  allowing  what  is 
known  as  alternative  pleading  may  be  followed  in  cases  of 
fraud  where  the  plaintiff  is  not  certain  in  what  manner  the 
same  was  committed.^  To  maintain  an  action  for  deceit,  the 
plaintiff  must  allege  with  reasonable  certainty,  and  be  pre- 
pared to  prove,  that  the  defendant  made  a  representation  to 
the  plaintiff  intending  that  he  should  act  upon  it;  that  the 
same  was  false;  that  the  defendant,  when  he  made  it,  knew 
it  to  be  false,  and  that  the  plaintiff,  believing  such  represen- 
tation to  be  true,  acted  upon  it,  and  was  injured  thereby.* 
"Where  the  injury  complained  of  is  the  result  of  actual  com- 
bination and  fraud,  the  same  should  be  so  averred,  not  in  a 
general  manner,  but  with  the  same  precision  that  is  required 
in  other  averments  of  fact.'  It  is  also  said  to  be  the  well-set- 
tled rule  that  a  pleading  on  demurrer  is  deemed  to  allege 
what  may  be  implied  from  the  allegation  by  reasonable  and 
fair  intendment,  and  facts  impliedly  averred  are  traversable  in 
the  same  manner  as  though  directly  averred.  This  has  been 
held  applicable  to  allegations  of  fraud."*  The  petition  must 
charge  the  fraudulent  intent  in  positive  terms,  that  is,  that 
the  intention  was  to  deceive,  and  not  leave  it  to  be  inferred 
from  the  falsity  of  the  facts  alleged.^ 

Sec,  608.  Action  for  deceit  or  false  representation.— 
There  is  a  broad  distinction  between  fraud  for  which  a  con- 
tract will  be  set  aside,  and  fraud  which  will  sustain  an  action 

98  Ind.  335 ;  Bailey  v.  Ryder,  10  N.  Y.  -  Whitelsey     v.     Delaney,    siqjra; 

363;  Fry  v.  Day,  97  Ind.  348;  Kraus  Maher  v.  Insurance  Co..  67  N.  Y.  283. 

V.  Thompson,  30  Minn.  64 ;  Humph-  3  Rassussen  v.  McKnight  3  Utah, 

rey  v.  Mattoon,  43  la.  556.     A  simple  315. 

allegation  of  fraud  is  not  sufficient.  ^  Byard  v.  Holmes,  34  N.  J.  L.  296. 

Railroad   Co.   v.   Commissioners,  18  5  Williams  v.  Presbyterian  Society, 

Kan.    169 ;    Norris  v.  Scott,   6  Ind.  1  O.  S.  478. 

App.   18;    32  N.   E.  Rep.  103  (1892).  « Beethoven,   etc.    Co.  v.  McEvven 
Fraud  is  not  presumed;  it  must  be  Co.,  59  N.  Y.  Super.  7;  Marie  v.  Gar- 
proved  by  the  one  setting  it  up.   Stitt  rison,  83  N.  Y.  23. 
V.  Wilson,  W.  505.  '  Bartholomew   v.    Bentley,  15  O. 
1  Whitelsey  v.  Delaney,  73  N.  Y.  659 ;  Williams  v.  Fresby.  Soc,  supra; 
571 ;  Maxwell  on  Code  Pldg.,  p.  193 :  Bank  v.  Beebe,  6  O.  497. 
Cummings   v.  Thompson,  18  Minn. 
246;  Fox  v.  Webster.  46  Mo.  181. 


566  FKAUD   AND    DECEIT.  [§  608. 

for  deceit.  To  recover  in  an  action  for  deceit  there  must  be 
either  a  false  representation  of  a  material  matter,  which  in- 
duces the  party  to  make  a  contract,  or  there  must  have 
been  some  device  for  the  purpose  of  inducing  the  same.^  To 
constitute  fraudulent  or  false  representations  so  as  to  furnish 
ground  for  the  rescission  of  a  contract,  they  must  be  both  false 
and  fraudulent.  If  made  under  an  honest  belief  that  they 
are  true,  they  are  not  fraudulent ;  but  if  untrue  statements 
are  made  recklessly,  without  knowledge,  they  are  fraudulent. 
The  principle  that  a  party  is  liable  for  a  false  representation 
of  material  facts  applies  to  all  those  cases  where  influence  is 
acquired  and  abused,  or  confidence  is  reposed  and  betrayed.  If 
a  person  occupying  confidential  relations  to  another,  knowing 
that  he  is  trusted,  makes  a  false  representation  of  a  material 
fact,  he  is  responsible  for  any  loss  resulting  therefrom.^  The 
petition  should  show  that  the  representations  were  upon  some 
material  fact,  which  if  relied  upon  would  mislead  the  party. 
It  is  not  essential  to  maintain  the  action  that  the  party  mak- 
ing the  representations  should  know  the  falsity  of  his  state- 
ments, as  he  will  be  held  liable  if  he  had  no  reason  to  believe 
the  same  were  true  when  he  made  them,  and  that  they  were 
intentionally  made  for  the  purpose  of  inducing  the  one  to 
whom  they  were  made  to  act  upon  them.^  Representations 
based  merely  upon  opinion,  however,  of  a  fact  clearly  within 
the  knowledge  of  both  parties,  are  representations  upon  which 
a  person  has  no  right  to  rely,  and  therefore  do  not  fall  within 
the  rule.*  Although  the  rule  is  well  settled  that  where  the 
representations  are  merely  expressions  of  opinion  there  can 
be  no  liability,  yet  where  they  go  beyond  this,  relief  may  be 
had.*     Whether   or   not   representations   are   expressions  of 

iCrowell  V.  Jackson,  15  N.  J.  L..J.  that  he  had    actual    knowledge  of 

23 ;  27  W.  L.  B.  26 ;  Cowley  v.  Smith,  their  truth.     Marsh  v.  Falker,  40  N. 

17  Vroom,  382.  Y.  563 ;  Chester  v.  Comstock,  40  N. 

2  Smith  V.  Patterson,  33  O.  S.  70.  Y.  575 ;  Hubble  v.  Meigs,  50  N.  Y. 
See  Miller  v.  Barber,  66  N.  Y.  558 ;  480 ;  Babcock  v.  Sibley,  82  N.  Y.  144. 
Thomas  v.  Beebe,  25  N.  Y.  244.  *  ^tna  Ins.  Co.  v.  Reed,  33  O.  S. 

3  ^tna  Ins.  Co.  v.  Reed,  33  O.  S.  283 ;  Salem  India  Rubber  Co.  v. 
283.    Other  cases  hold  that  the  party  Adams,  23  Pick.  256. 

making    the    representations    must  ^  Ketcham  v.  Phillips,  1  Clev.  Rep. 

have  known   at  the   time  that  they  9;  Scrogin  v.Wood,54  N.  W.  Rep.  437 

were  false,  or  he  must  have  assumed  (Iowa,  1893) ;    Sheldon  v.  Davidson, 

or  intended  to  convey  the  impression  85  Wis.  138;  55  N.  W.  Rep.  161. 


§  60S.]  FRAUD  AND  DECEIT.  567 

opinion,  or  the  statement  of  a  fact  to  be  relied  upon,  is  a  ques- 
tion for  the  jury.'  A  person  is  clearly  liable  for  representa- 
tions made  upon  information  received  from  another  person.* 
An  action  for  a  false  representation  cannot  be  founded  upon 
a  future  occurrence,  but  must  be  made  in  reference  to  an 
existing  fact.^ 

A  person  is  not  justified  in  relying  upon  representations 
made  by  an  agent  of  an  insurance  company  to  one  holding  a 
claim  for  a  loss.*  But  a  member  of  a  corporation  who  makes 
a  false  representation  as  to  the  financial  condition  of  the  com- 
pany in  order  to  sell  its  stock  is  liable  therefor  even  though 
the  purchaser  could  have  discovered  the  same  by  an  investiga- 
tion.* And  an  action  may  be  maintained  against  a  corpora- 
tion for  the  recovery  of  money  obtained  by  its  agents  by 
false  representations,  and  the  letters  written  by  a  general 
agent  of  such  company  to  a  local  agent  may  be  received  as 
evidence.®  An  action  may  be  maintained  for  false  representa- 
tions, although  there  may  have  been  other  co-operative  in- 
ducements which  caused  the  loss.''  A  special  action  on  the 
case  may  be  sustained  against  a  debtor  for  fraudulently  repre- 
senting himself  insolvent,  thereby  inducing  a  creditor  to  dis- 
charge a  claim  against  him.^  An  action  may  be  maintained 
for  damages  for  false  representations  as  to  title  in  the  sale  of 
lands,  even  though  the  deed  does  not  contain  any  covenants 
in  this  respect.*  A  grantor  who  induces  another  to  purchase 
real  estate  by  means  of  false  representations  as  to  title,  and 
covenants  against  all  persons  claiming  under  him,  is  liable 
where  the  loss  occurs  to  the  grantee  by  reason  of  no  title 
being  in  the  grantor.^"  A  person  seeking  a  loan,  who  falsely 
represents  that  there  are  no  liens  upon  the  premises  and 
thereby  prevents  another  from  making  an  investigation,  when 

«  Floyd  V.  Paul,  10  W.  L.  B.  14.  7  Bank  v.  Bank.  56  Fed.  Rep.  139; 

2Foreman  V.  Compton,  2Clev'.  Rep.  Saflford  v.   Giout.    120    Mass.    20-5; 

'318.  Matthews  v.  Bliss,  23  Pick.  48;   Coo- 

3  Smith  V.  Bowler,  1  Disn.  540 ;  Mc-  ley  on  Torts  (2d  ed.),  587. 

Cracken  v.  West.  17  O.  16.  8  Edwards  v.  Owen.  15  O.  500. 

<^tna  Ins.    Co.   v.  Reed,  33  O.  S.  » Barnes  v.  Railroad  Co.,  54  Fed. 

283 ;  Swimua  v.  Bush,  23  Mich.  99.  Rep.  87  (Iowa,  1893). 

5  Redding  v.  Wright,  49  Minn.  322.  lOSaguinn  v.  Liedentopf,  54  N.  W. 

6  U.  S.  Home  &  Dower    Ass'n  v.  Rep.  430. 
Kirk,  9  W.  L.  B.  48. 


568  FKAUD    AND    DECEIT.  [§  609. 

there  is  in  fact  an  incumbrance,  is  responsible  for  any  dam- 
ages arising  therefrom.^  And  although  false  representations 
made  with  reference  to  value  of  land  may  not  sustain  an 
action  for  damao-es,  vet  when  there  are  other  and  additional 
representations  made  in  that  connection  as  to  other  material 
matters,  an  action  will  lie.-  A  person  is  also  liable  for  false 
representations  made  with  respect  to  quality  or  other  mat- 
ters affecting  the  value  of  real  estate,^  especially  when  the 
value  is  less  than  the  land  is  actually  worth.^  A  false  rep- 
resentation may  consist  as  well  in  the  concealment  of  what 
is  true  as  in  the  assertion  of  what  is  false.^  In  order  to 
create  a  liability  the  representations  must  have  been  made  for 
the  purpose  of  inducing  another  to  act  upon  them  in  some 
matter  affectino:  his  own  interests.^  A  deed  obtained  under 
false  representations  will  be  set  aside  as  fraudulent.^  At  com- 
mon law,  false  representations  made  prior  to  the  execution  of 
a  deed  did  not  avoid  it,  but  reUef  could  be  had  in  equity.* 
Where  a  false  representation  as  to  age  is  made  by  a  part}^ 
seeking  insurance,  the  insured  cannot  take  advantage  of  his 
own  false  representations,  and  claim  that  the  policy  of  in- 
surance was  void,  in  an  action  by  him  for  the  recovery  of 
premiums  paid,  upon  the  company  declaring  the  policy  for- 
feited.^ A  rescission  of  a  contract  made  or  obtained  by  false 
representation  can  have  no  effect  whatever.^"  And  where  a 
person  seeks  to  rescind  a  contract  on  the  ground  of  false  repre- 
sentation, he  must  first  offer  to  rescind  promptly  upon  discov- 
ering: the  fraud.^^ 

Sec.  609.  Petition  for  fraud  in  obtaining  goods  under  con- 
tract induced  by  fraudulent  representations — 

[Caption.'] 

That  on  the day  of ,  18 — ,  the  said  defendants  fraud- 
ulently combined  and  confederated  together  to  cheat  and  de- 

1  Jenkinson  v.  Stonemau,  1  Clev.        5  Nairn  v.  Evvalt,  51  Kan.  355 ;  S.  C, 
Rep.  218.  ^2  Pac.  Rep.  1110  (1893). 

2  Griffing  v.  Diller,  21  N.  Y.  S.  407 ;        6  Wells  v.  Cook,  16  O.  S.  67. 

66  Hun,  633.  "  Long  v.  Mulford,  17  O.  S.  485. 

3  Stevens  v.  Allen,  51  Kan.  144;  33        » Williams  v.  Mears.  2  Disn.  604. 
Pac.  Rep.  922  (1893 j.  9  Low  v.  Insurance  Co.,  6  W.  L,  B 

4  Williamson   v.    Woten,    132  Ind.  666. 

202;  s.  c,  31  N.  E.  Rep.  791  (1892).       lo  jones  v.  Booth,  38  O.  S.  405. 

"  Parmele  v.  Adolph,  28  O.  S.  10. 


§  609.]  FRAUD    AND    DECEIT.  569- 

fraud  the  plaintiff,  and  thereby  then  and  there  did,  in  pursuance 
of  said  combination  and  confederation  between  them,  fraudu- 
lently obtain  from  the  plaintiff  goods  and  chattels  enumer- 
ated, as  follows:  [Set  tlieiix  ouf]  That  at  the  time  said  goods 
and  chattels  were  so  fraudulently  obtained,  plaintiff  was  a 

merchant  at ,  Ohio,  and  on  or  about  the  said day  of 

,  18 — ,  said  defendant  K.,  with  full  knowledge  on  the  part 

of  said  defendant  D.,  and  acting  at  his  suggestion  and  instiga- 
tion, came  to  plaintiff's  store  in ,  and  then  and  there,  in 

order  to  obtain  said  goods  and  chattels,  fraudulently  and 
falsely  represented  to  plaintiff  that  he,  said  K.,  the  defend- 
ant, was  a  son  of  C.  II.  K.,  of ,  and  was  a  partner  of  said 

C.  H.  K.,  as  merchants  at ,  in  the  firm  name  of  C.  11.  K. 

&  Son,  said  C.  H.  K.  then  being  known  to  plaintiff  to  be  re- 
sponsible [or  ichatecer  the  false  representations  may  he],  all  of 
which  representations  were  wholly  false,  and  were  known  by 
said  defendants,  at  the  time  they  were  made,  to  be  false. 
That  it   was  not  true  that  said  defendant  K.  was  a  son  of 

C.  H.  K.  of .  nor  was  it  true  that  said  defendant  was  then, 

or  ever  had  been,  a  partner  of  said  C.  H.  K.,  by  means  of  which 
false  and  fraudulent  representations  the  said  defendant  ob- 
tained from  plaintiff  the  goods  and  merchandise  hereinbefore 

specified,  which  were  of  the  value  of dollars,  and  have,  by 

reason  of  their  said  frauds,  subjected  said  plaintiff  to  damages, 
expense,  cost  and  charges,  in  the  sura  of dollars.  In  addi- 
tion thereto  that  said  goods  and  merchandise  were,  after  being 

so  fraudulently  obtained  from  plaintiff,  shipped  to  ,  and 

there  received  by  said  D.,  and  by  him,  as  well  as  bv  the  said 
K.,  immediately  thereafter  exposed  to  sale  at  public  auction, 
and  some  portions  thereof,  as  well  as  other  goods  obtained  in 
the  same  manner,  sold  at  such  public  auction  as  rapidly  as 

possible,  but  before  all  were  sold  both  defendants  left , 

and  neither  one  has  returned. 

The  plaintiff  avers  that  the  obtaining  of  said  goods  in  the 
manner  and  upon  the  representations  aforesaid  was  a  scheme 
to  defraud  plaintiff  and  others,  concocted  and  carried  out  by 
the  defendants,  and  for  the  pecuniary  benefit  of  both,  and  that 
both  participated  in  the  proceedings  of  the  fraud,  whereby, 
and  by  reason  of  the  premises,  plaintiff  says  that  he  has^ 
sustained  damages,  and  that  the  defendants  have  damaged 

him  in  the  sum  of  dollars,  and  that  by  reason  of  the 

premises  aforesaid  an  action  has  accrued  to  him  therefor 
against  the  said  defendant. 

Wherefore  he  prays  judgment,  etc. 

Note.—  From  Dean  v.  Yates,  22  O.  S.  388. 


570  FRALD    AND    DECEIT.  [g§  610,  611. 

Sec.  610.  Petition  for  fraudulent  concealment  in  sale  of 
property. — 

[^Formal  averments.'] 

That  on  the  day  of  ,  IS — ,  the  plaintiff  bought 

of  the  defendant  a  certain  horse  for  the  sura  of dollars. 

At  the  time  of  said  sale  said  horse  was  not  sound,  but  had  the 
heaves,  which  fact  was  at  that  time  well  known  to  the  defend- 
ant and  was  then  unknown  to  plaintiff,  but  that  said  defend- 
ant then' intentionally,  falsely  and  fraudulently  concealed  said 
fact  from  plaintiff,  and  thereb}'  sold  the  said  horse  to  him  for 
the  price  aforesaid.  That  said  horse,  at  the  time  of  the  said 
sale  thereof,  had  the  heaves,  to  the  knowledge  of  the  said  de- 
fendant, and  was  thereby  rendered,  and  has  ever  since  so 
continued,  utterly  unfit  for  use. 

Wherefore  the  plaintiff  alleges  that  he  has  been  damaged 

in  the  amount  of dollars,  for  which  amount  he  demands 

judgment  against  the  defendant. 

Sec.  611.  Petition  to  declare  subscription  to  capital  stock 
of  corporation  null  and  Toid^  because  of  its  being  procured 
by  false  representations;  and  for  the  recovery  of  the  amount 
paid  thereon. — 

The  plaintiff,  for  his  cause  of  action  against  said  defendant, 
says : 

That  the  defendant  is  a  corporation  created  and  organized 
under  the  laws  of  the  state  of  Ohio. 

That  on  and  prior  to  the day  of ,  18 — ,  the  plaint- 
iff was  a  resident  of  P.,  in  the  state  of  P.,  and  was  em- 
ployed as  a  steel  melter;  that  a  short  time  previous  to  said 
day  of ,  18 — ,  the  plaintiff,  at  the  request  of  defend- 
ant, came  to  C,  Ohio,  for  the  purpose  of  seeing  the  works  of 
defendant,  with  a  view  to  investing  in  the  stock  of  said  com- 
pany. 

That  plaintiff  was  shown  through  said  works  by  the  presi- 
dent and  the  secretary  and  treasurer  of  said  defendant  com- 
pany, and  the  said  works  consisted  of  certain  largo  and  con- 
venient lots  of  ground  situated  in  the  city  of  C,  on  the  line  of 
the  C.  &  P.  Railroad,  in  a  convenient  and  desirable  place  for 
such  business,  and  of  buildings  thereon,  and  engine,  roller, 
machinery,  etc.,  for  the  melting  and  manufacture  of  steel. 

That  on  the  said day  of ,  18 — ,  the  said  defendant, 

for  the  purpose  of  inducing  the  plaintiff  to  invest  in  said  com- 
pany by  purchasing  $ of  its  stock,  and  to  come  to  C.  and 

employ  his  time  in  said  business,  made  the  following  repre- 
sentations to  ])laintiff:  {^Sjjecify  representations.'] 

And  the  plaintiff  says  that  he  relied  upon  each  of  the  rep- 
resentations above  stated  and  believed  them  to  be  true,  and 
without  said  representations  he  would  not  have  invested  in 


§  612.]  FRAUD  AND  DECEIT.  571 

said  company  or  purchased  any  of  its  stock;  but  believing  and 
relying  on  said   representations  and  upon  the  faith  of  them, 

the  ])laintiff  did   purchase shares  of  $ each  of  the 

capital  stock  of  said  company,  and  paid  therefor  the  face  value 

thereof  in  money,  to  wit,  the  sum  of  $ ,  to  the  defendant 

on  the of ,  18 — . 

And  plaintiff  avers  that  the  representations  aforesaid  were 
wholly  false  and  were  so  known  to  be  by  the  defendant  when 
made,  and  that  they  were  falsely  and  fraudulently  made  for 
the  ])nrpose  of  inducing  him  to  make  said  purchase  of  stock. 

That  in  truth  and  in  fact  the  defendant  did  not  own  the 
works  referred  to,  but  merely  rented  the  land  by  the  year, 
without  any  lease  in  writing  or  right  to  remain  there  longer 
than  a  few  months,  and  that  said  new  buildings,  engine,  rolls, 
etc.,  had  not  been  in  fact  fully  paid  for;  that  said  company 
was  largely  in  debt,  and  in  its  then  condition  and  with  its 
capital  and  resources,  and  burdened  and  incumbered  with  debts 
as  heretofore  alleged,  said  company  could  not  and  did  not  pay 

per   cent,  dividends   or   any  dividends  whatever;   and 

plaintiff  avers  that  as  soon  as  he  learned  of  the  falsity  of  the 
above  representations  he  complained  to  the  said  defendant, 
demanded  the  return  of  his  said  money,  and  offered  to  sur- 
render up  his  stock  for  cancellation ;  but  the  said  defendant, 
notwithstanding  the  premises,  refused  and  still  does  refuse  to 
cancel  said  stock  or  pay  back  to  the  plaintiff  his  money  afore- 
said, though  often  requested  by  plaintiff  so  to  do. 

Wherefore  the  said  plaintiff  prays  that  the  court  will  be 
pleased  to  decree  that  the  aforesaid  subscription  of  plaintiff 
to  the  capital  stock  of  said  defendant  company  was  obtained 
by  fraud,  and  by  means  of  material  false  and  fraudulent  rep- 
resentations, and  declare  the  same  null  and  void,  and  require 

the  defendant  to  pay  to  plaintiff  the  said  sum  of  § ,  for 

which  said  sum  he  asks  judgment  against  the  said  defendant, 

with  interest  thereon  from ,  18 — ,  and  for  such  other  and 

further  relief  as  plaintiff  may  be  entitled  to  receive. 

Note. —  From  Cleveland  Crucible  Steel  Co.  v.  Murdock,  Supreme  Court, 
unreported.  No.  1616. 

Sec.  612.  Petition  for  false  representation  to  purchaser 
of  real  estate. — 

\For'mal  averinent8?[ 

That  the  defendant,  on  or  about  the day  of ,  18 — , 

in  consideration  that  the  plaintiff  would  buy  of  him  a  farm 

situated  in  the  township  of— — ,  in  the  county  of  ,  and 

state   of  ,   and    pay  unto   him   the  sum    of    $ ,    by 

transfer  of  other  real  estate  and  other  securities  for  the  same, 
falsely  and  fraudulently  represented  and  alleged  that  the  said 
farm  coutamed acres  of  land. 

Plaintiff  says  that  he  relied  upon  said  representations  and 


572  FRAUD    AND    DECEIT.  [^'§  613,  614. 

allegations  of  the  defendant,  and  believed  them  to  be  true,  and 
did,  upon  the  faith  of  said  representations,  purchase  and  pay 
for  the  said  farm  at  the  price  above  specified.  That  such 
representations  and  allegations  were  in  fact  untrue,  and  that 

said  farm  contained  only  about acres  of  land,  and  that 

said  plaintiff  has  sustained  damages  to  the  a.mount  of  8 . 

Wherefore  he  demands  judgment  against  the  defendant  for 
the  sum  of  8 ,  and  for  all  other  proper  relief. 

Sec.  613.  Petition  for  false  represeutatious  as  to  quality 
in  sale  of  goods. — 

{Formal  averments.^ 

That  on  the day  of ,  IS — ,  plaintiff,  at  defendant's 

request,  bargained  with  said  defendant  to  purchase  from  him 
the  following  goods,  to  wit :  \_Specify.'] 

That  said  defendant,  to  induce  the  plaintiff  to  make  such 
purchase,  falsely  and  fraudulently  represented  said  goods  to 
be  of  the  best  quality  of  {specify  goods],  and  the  plaintiff,  re- 
lying upon  said  representations  of  the  defendant,  believing 
them  to  be  true,  thereupon  purchased  said  goods  for  the  sum 
of  $ . 

That  said  {specify  goods']  was  not  the  best  quality  of  {specify 
goods],  and  was  falsely  represented  by  the  defendant,  but 
was  made  from  an  inferior  variety  of  {specify],  and  was  of 
but  little  value,  all  of  which  the  defendant  then  well  knew, 
but  falsely  and  fraudulenth^  deceived  the  plaintiff  in  the  sale 
thereof,  to  his  damage  in  the  sum  of  $ . 

{Prayer.] 

See.  614.  Petition  to  have  judgment  by  justice  of  peace 
for  property  fraudulently  obtained  declared  a  charge  upon 
real  estate. — 

That  on  the day  of ,  18 — ,  by  the  consideration  of 

W.  B.,  a  duly  elected  and  qualified  justice  of  the  peace  of 

township,  — —  county,  Ohio,  he  duly  recovered  a  judgment 

against  said  H.  T.  for  the  sum  of dollars,  and dollars 

costs  of  suit,  which  said  judgment  is  unappealed  from,  unre- 
versed, unsatisfied  and  unpaid,  and  there  is  now  due  thereon 

the  sum  of  dollars  with  interest  from  the  day  of 

,  IS — ,  and  said  costs. 

Plaintiff  says  the  consideration  of  said  debt  was  the  furnish- 
ing by  him  to  said  H.  T.  of  lumber  and  timber  for  the  con- 
struction of  a  dwelling-house  ujDon  a  lot  of  land  which  was, 
and  to  this  date  has  been,  and  still  is,  owned  by  E.  W.  T.,  wife 
of  said  H.  T.,  and  is  described  as  follows:  {Describe premises.] 

Plaintiff  says  that  said  H.  T.  obtained  said  lumber  and  tim- 
ber by  representing  to  plaintiff  that  he  was  the  owner  in  his 
own  right  of  said  premises,  which  was  then  and  there  relied 
upon  by  plaintiff  in  parting  with  his  property ;  that  said  state- 


§  615.]  FRAUD    AND    DECEIT. 


573 


ment  was  made  with  the  intent  and  for  the  purpose  of  Jeceiy- 
ing  plaintiff;  that  said  statement  was  untrue;  that  in  fact  said 
H.  T.  had  no  personal  property  or  real  estate  except  some 
articles  of  personal  property  specifically  exempt  from  execu- 
tion, and  has  so  remained  to  this  date. 

Said  II.  T.  having  so  obtained  said  lumber  and  timber  used 
the  same  in  building  said  house  on  said  land  without  consider- 
ation as  between  him  and  his  said  wife,  E.  ^V.  T.,  and  with 
the  intent  and  purpose  of  defrauding  plaintiff  of  his  said  claim, 
and  his  wife,  the  said  E.  W.  T.,  participated  in  said  fraud. 

Wherefore  plaintiff  prays  that  the  amount  justly  due  him, 
having  been  determined  by  the  court,  the  payment  of  the  same 
and  interest  and  costs  of  suit  may  by  the  order  of  the  court  be 
made  a  charge  upon  said  premises  in  the  petition  described, 
and  said  premises,  in  default  of  the  ))ayment  of  the  amount  so 
found  due,  may  be  ordered  sold  as  upon  execution  at  law,  and 
other  relief  as  equity  and  the  case  may  require. 

Sec.  615.  Petition  for  false  representations  iu  exchange 
of  property. — 

On  the day  of ,  IS — ,  plaintiff  was  the  owner  and 

possessed  of  an  equitable  mterest  in  and  of  the  following  de- 
scribed real  estate,  situate  in,  etc.:  [Description.] 

That  plaintiff  on  the  date  aforesaid,  was  also  the  owner  and 
possessed  of  the  following  personal  property,  to  wit  [descrip- 
tion], which  said  personal  property  he  had  bought  and  grown 

on  said  acres  of  land,  and  was  in  the  full  enjoyment 

thereof  when  approached  by  the  said  defendant  as  herein- 
after set  forth. 

Plaintiff  says  that  said  defendant,  L.  S.  H.,  on  or  about  the 

said day  of ,  18 — ,  with  corrupt  and  wicked  designs, 

and  with  intent  to  cheat,  swindle  and  defraud  this  plaintiff 
out  of  the  personal   property  aforesaid,  as  well  as  plaintiff's 

equitable  interest  in  said acres  of  land,  did  falsely  and 

fraudulently  represent   to   this    plaintiff   that    he,    the   said 

defendant,  was  possessed  of  a  quantity  of  land  situate  in 

county,  Tenn.,  consisting  of acres.     That  said  land  was 

improved,  had  on  it  a  log  house,  good  spring  water,  good 
peach  and  apple  orchard,  and  was  good  soil  and  susceptible 
of  a  high  decree  of  cultivation,  and  was  well  worth dol- 
lars per  acre;  that  the  said  defendant,  desiring  to  get  rid  of 
this  lot  of  land  —  it  being  the  only  remaining  lot  of  a  large 
quantity  that  he  had  owned  in  Tennessee,  undisposed  of  —  in 
order  that  he  might  have  his  property  nearer  home,  offered  to 
exchange  the  same  with  plaintiff",  so  as  to  give  plaintiff'  a  good 
bargain  and  enable  him  to  thus  obtain  a  good  home,  all  paid 
for  and  unincumbered,  that  he  would  make  plaintiff  agood and 

valid  deed  of  said acres  of  land,  and  pay  plaintiff  % for 

plaintiff's  said  interest   in  said acres  and  the  personal 


574  FRAUD    AXD    DECEIT  [§  616. 

property  aforesaid,  Plaintiff  says  that  he,  relying  and  confid- 
ing in  the  said  false  and  fraudulent  representations  of  defend- 
ant and  believing  them  to  be  true,  did  then  and  there  assign 

all  of  his  said  interest  in  said acres  to  defendant,  and  did 

then  and  there  deliver  to  said  defendant  all  of  said  personal 
property.  Whereupon  said  defendant  agreed  to  give  plaint- 
iff his  said  deed  of  said  land,  and  said  he  would  send  it  to 

county,  Tenn.,  and  have  the  same  recorded  for  plaintiff. 
Plaintiff  avers  that  said  defendant  never  intended  to  and 

never  did  convey  said acres  or  any  other  land  to  this 

plaintiff;  that  in  truth  and  in  fact,  when  said  defendant  made 
said  representations  as  aforesaid,  he  did  not  own,  nor  was  he 

possessed  of, acres  of  land  in  said  county  in  Tennessee, 

whereon  was  a  log  house,  good  spring  water,  good  peach  and 
apple  orchard,  improved  and  susceptible  of  a  high  degree  of 
cultivation,  or  worth  I per  acre,  all  of  which  said  defend- 
ant at  the  time  he  made  said  representations  well  knew. 

Plaintiff  further  says  that  said  defendant,  immediately  on 
becoming  possessed  of  the  property  of  plaintiff  as  aforesaid, 
sold  the  same  and   converted  the  proceeds  to  his  own  use, 

and  has  paid  said  plaintiff  but  $ of  the  $ in  money 

which  he  agreed  to  pay.  Plaintiff  says  that  by  reason  of 
the  fraudulent,  wicked  and  wrongful  acts  of  said  defendant 
as  aforesaid,  he  and  his  family  were  robbed  and  defrauded  out 
of  all  their  property,  and  that  by  reason  of  the  wrongs  and 
fraudulent  acts  of  said  defendant  as  aforesaid,  plaintiff  has  sus- 
tained damages  in  the  sum  of  S ,  for  which  amount  he 

prays  judgment  against  defendant.  "W".  C.  B., 

Attorney  for  Plaintiff. 

Note.— Taken  from  Holden  v.  Belmont,  32  O.  S.  585. 

Sec.  616,  Petition  for  false  representations  n>ade  to  in- 
dnce  credit. — 

That  on  or  about  the day  of ,  IS — ,  the  defendant,. 

to  induce  the  plaintiff  to  sell  to  him  on  credit  certain  goods 
and  chattels  [o/',  wares  and  merchandise],  to  wit :  [state  nature 

of  goods\  of  the  value  of dollars,  falsely  and  fraudulently 

represented  to  plaintiff  that  {state  the  representations  raade\ 

That  the  plaintiff,  relying  upon  these  representations  of  de- 
fendant, and  believing  them  to  be  true,  sold  and  delivered  the 
said  good  and  chattels  to  the  defendant,  for  which  the  defend- 
ant agreed  to  pay dollars. 

That  the  said  representations  so  made  by  defendant  were 
untrue,  and  that  in  truth  and  in  fact  \state  in  what  respect]. 

That  no  part  of  the  price  of  said  goods  and  chattels  has 
been  paid.  That  by  reason  of  said  false  and  fraudulent  rep- 
resentations the  plaintiff  has  been  put  to  great  trouble  and 
expense,  to  wit :  [State  damages.] 

Wherefore  the  plaintiff  demands  judgment  against  the  de- 


§§  617,  618.]  FRAUD  AND  DECEIT.  575 

fendant  for dollars  and cents,  with  interest  from 

the day  of ,  18 — ,  and  prays  for  all  other  proper 

relief. 
Sec.  617.  Attacking  judgments  and  decree  for  fraud. — 

The  statutes  of  Ohio  provide  that  a  judgment  may  be  vacated 
or  modified  by  a  court  of  common  pleas  or  circuit  court  after 
the  term  at  which  it  was  rendered  for  any  fraud  practiced  by 
the  successful  party  in  obtaining  the  same.^  This  provision, 
however,  is  merely  a  cumulative  remedy,  and  does  not  include 
or  limit  the  right  of  a  paf  ty  to  prosecute  an  original  action  to 
impeach  a  judgment  or  enjoin  its  collection  upon  the  ground 
of  fraud.2  A  petition  to  vacate  a  judgment  under  the  statute 
which  alleges  that  a  judgment  was  rendered  by  default  or 
answer  without  defense,  upon  a  demand  not  based  upon  con- 
tract, discloses  fraud  upon  the  part  of  the  prevailing  party 
sufficient  to  vacate  the  judgment.^  When  a  petition  is  filed 
to  impeach  a  judgment  it  must  particularly  set  forth  the  facts 
and  circumstances  which  it  is  claimed  constitutes  the  fraud.* 
A  decree  from  the  bonds  of  matrimony,  although  obtained  by 
fraud  and  false  testimony,  cannot  be  set  aside  on  an  original 
bill  filed  at  a  subsequent  term,^  Where  a  case  is  submitted 
to  arbitrators,  their  finding  cannot  be  vacated  except  on  the 
ground  of  fraud.^  An  action  for  damages  cannot  be  main- 
tained against  one  on  the  ground  that  a  judgment  was  ob- 
tained by  fraud.^ 

Sec.  618.  Defenses  to  actions  for  fraud. —  The  same  rules 
as  to  pleading  facts  constituting  fraud  when  affirmative  re- 
lief is  sought  in  a  petition  are  equally  applicable  when  set  up 
by  way  of  defense.^  Where  the  charge  of  fraud  consists  in 
representing  another  worthy  of  credit,  the  defendant  may 
prove  what  in  his  opinion  he  said  the  plaintiff  was  worth  prior 

1  O.  Code,  sec.  5354.     See  Fackler        5  Parish  v.  Parish,  9  O.  S.  534. 

V.  Relief  Society,  5  W.    L.   B.  353 ;  6  Orrabsy  v.  Bakewell,  7  O.  (Pt  IX 

Baldwin  v.  Sheets,  39  O.  S.  624.  98. 

2  Darst  V.  Phillips,  41  O.  S.  514 ;  '  McCafiferty  v.  O'Brien,  1  C.  S.  C. 
Coates  V.  Bank,  23  O.  S.  416 ;  Lieby  R  64. 

V.  Pock,  4  O.  469:  Long  r.  Mulford,  ^gee    ante,  sea    607;    Tucker    v. 

17  O.  S.  484."  Parks,  7  Colo.  62;  Giflford  v.  Carvill, 

3  Pollock  V.  Pollock,  2  O.  C.  C.  143.  29  Cal.  589 ;  People  v.  San  Francisco^ 
i  Reeder  v.  Stephenson,  3  W.  L.  B.  27  Cal.  656. 

1120,   1121  (Ham.    Co.   Dist  Court); 
Pendleton  v.  Galloway,  9  O.  179. 


576  FKALD    AND    DKCEIT,  [j^   iill». 

to  the  time  of  making  the  statement  charged,  in  order  to 
repel  the  imputation  of  fraud.^  Tiie  law  will  not  permit  any 
one  to  set  up  his  own  iniquity  to  defeat  an  innocent  person; 
nor  will  it  grant  relief  between  two  persons  who  are  guilty  of 
fraud  to  aid  either  to  disturb  a  contract  which  has  been  ex- 
ecuted, or  to  perform  any  part  of  the  transaction  remaining.- 
Where  a  petition  avers  that  fraud  was  not  discovered  until 
within  four  years  before  the  commencement  of  the  action,  an 
answer  charging  that  the  cause  of  action  did  not  accrue  within 
four  years  before  suit  because  the  same  was  not  committed 
within  that  time  is  not  a  good  defense.^  An  answer  to  an 
action  upon  a  note  that  the  same  was  procured  by  fraud  and. 
without  consideration,  when  it  appears  from  the  petition  that 
the  note  was  transferred  long  before  due,  the  answer  not 
containing  an  averment  of  knowledge  on  the  part  of  the 
plaintiff  of  the  existence  of  such  fraud,  or  of  want  of  con- 
sideration, is  subject  to  demurrer."*  It  is  no  defense  to  an 
action  for  fraud  resulting  in  damages  that  the  fraudulent 
acts  were  committed  in  the  capacity  of  a  corporation  '"  A 
judgment  against  an  agent  for  fraud  committed  while  act- 
ing in  the  scope  of  his  agenc}^  on  which  collection  or  pay- 
ment has  been  made,  is  not  a  bar  to  an  action  against  the 
principal  for  the  same  fraud.  The  fact  that  the  principal  was 
wholly  ignorant  of  the  fraud  is  immaterial.^  A  creditor  hav- 
ing dealt  with  parties  to  a  conveyance  regarding  it  as  valid, 
cannot  afterwards  impeach  the  same  for  fraud."  The  rule  is 
well  settled  that  fraud  cannot  be  urged  as  a  defense  under  a 
general  denial.^ 

Sec.  619.  Defenses  to  actions  for  false  representations.— 
It  is  not  a  good  defense  to  an  action  for  false  representations 
that  the  same  were  made  in  good  faith  and  that  the  plaintiff 
had  a  reasonable  opportunity  to  ascertain  their  truth.^  In  an 
action  to  recover  upon  a  contract  for  the  sale  of  land,  a  de- 

1  McCracken  v.  West,  17  O.  16.  ^  Maple  v.  Railroad  Co.,  40  O.  S.  313. 

2  Goudy   V.  Gebhart.  1  O.  S.  262 ;  '  Rennick  v.  Rennick,  8  O.  554. 
Nellis  V.  Clark,  20  Wend.  24.  « Great      Western      Dispatch 

3  Maple  V.  Railroad  Co.,  40  O.  S.  313.  Glenny.  10  Am.  Law  Rec.  572. 

*  Wisenogle  v.  Powers,  1  Clev.  Rep.  ^  Benjamin  v.  Mattler,  32  Pac.  Rep. 
141.  837  (Col,  1893). 

s  Bartholomew   v.    Bentley,   15  O. 
«59 ;  1  O.  S.  38. 


§  620,]  FKAUD  AND  DECEIT.  577 

fense  that  the  sale  was  induced  by  false  representation  with 
respect  to  the  property  is  good. 
Sec.  620.  Answer  of  fraud  in  procuring  a  contract. — 

\_Ca2)tion.'] 

That  the  instrument  set  forth  in  the  complaint  upon  which 
this  action  is  founded  was  procured  from  the  defendant  by 
the  plaintiff  by  fraud  and  misrepresentation  in  this:  [^State  the 
particular  circumstances  constituting  the  fraud.']  That  said 
representations  made  by  the  plaintiff  were  false  and  untrue, 
as  he  then  well  knew,  but  the  defendant,  relying  upon  the 
same,  executed  and  delivered  said  instrument  to  the  plaintiff. 

The  defendant  therefore  prays  that  said  instrument  may  be 
<leclared  void  and  be  delivered  up  and  canceled. 
37 


CHAPTER  39. 


FRAUDULENT  CONVEYANCES. 


Sea  621.  Parties  to  actions  to  set 
aside  fraudulent  convey- 
ances. 

623.  Limitation  in  actions  to  set 
aside  fraudulent  convey- 
ances. 

623.  Action  for  relief  against 
fraudulent   conveyances. 

624  Petition  by  judgment  cred- 
itor to  set  aside  fraudulent 
mortgage  and  to  deter- 
mine priorities  of  liens. 

625.  Petition  to  set  aside  fraudu- 

lent conveyance  and  for 
sale  of  premises. 

626.  Petition  to  set  aside  fraudu- 

lent deeds  and  mortgages 
and  for  sale  of  premises. 


Sec.  627.  Petition  to  set  aside  a 
fraudulently  confessed 
judgment  and  sale  there- 
under. 

628.  Petition  to  set  aside  a  pre- 

tended sale  in  fraud  of 
creditors. 

629.  Petition  to  set  aside  fraudu- 

lent assignment. 

630.  Petition     to    set    aside    a 

fraudulent  deed. 

631.  Defenses  to  actions  to  set 

aside  fraudulent  convey- 
ances. 
633.  Answer  by  innocent  pur- 
chaser of    mortgage  at- 
tacked as  fraudulent 


Sec.  621.  Parties  to  actions  to  set  aside  fraiiduient  con^ 
Teyances. —  By.  statute  a  creditor  has  a  right  to  institute  an 
action  to  set  aside  any  conveyance  made  by  a  debtor  to  delay, 
hinder  or  defraud  his  creditor,  whether  actually  or  only  con- 
structively fraudulent.^  An  execution  debtor  who  has  levied 
on  land  which  the  judgment  debtor  has  fraudulently  conveyed 
may  maintain  an  action  to  set  the  same  aside.-  And  in  an 
action  against  a  vendor  and  vendee  to  set  aside  and  cancel 
a  deed  for  fraud,  though  both  are  necessary  parties,  yet  where 
the  relief  sought  is  a  cancellation  they  are  not  so  united  in 
interest  as  to  bring  them  within  the  meaning  of  the  code.' 
A  party  to  a  fraudulent  conveyance  cannot  set  up  his  own 
fraud  to  avoid  the  same,  nor  can  his  grantors  or  his  heirs  be 


1  Stephenson  v.  Reeder,  2  W.  L.  B. 
335 ;  Combs  v.  Watson,  2  C.  S.  C.  R 
523;  Jamison  v.  McNally,  21  O.  S. 
295. 


■2  Gormley  v.  Potter,  39  O.  S.  597. 
3  Moore  v.  Chittenden,  39  O.  S.  563. 


§§  022,  G23.J  FRAUDULENT   CONVEY A^'CES.  571^ 

heard  to  aver  the  existence  of  fraud  to  prevent  the  operation 
of  the  doctrine  of  estoppel.^     A  judgment  creditor  of  an  in- 
solvent corporation  may  maintain  an  action  to  set  aside  a  sale 
made  in  fraud  of  creditors,  even  though  the  corporation  has  ' 
been  dissolved  and  a  receiver  appointed.- 

Sec.  622.  Limitation  iu  actions  to  set  aside  fraudulent 
conveyances. —  The  same  rules  as  to  the  limitation  of  actions 
as  have  been  heretofore  laid  down  with  respect  to  actions  for 
fraud  and  deceit  apply  to  actions  to  set  aside  a  fraudulent 
conveyance.^  An  action  to  set  aside  a  fraudulent  conveyance 
is  barred  in  four  years  after  the  discovery  of  the  fraud;* 
hence  it  follows  that  the  petition  must,  where  it  shows  tliat 
the  conveyance  was  made  more  than  four  years  prior  to  the 
action,  allege  that  the  fraud  was  not  discovered  until  within 
the  period  of  four  years.^  A  petition  in  which  it  is  sought  to 
set  aside  a  conveyance  in  fraud  of  creditors,  which  upon  its 
face  shows  that  more  than  four  years  have  elapsed  since  the 
execution  of  the  deed,  is  good  if  it  alleges  that  there  was  a  lack 
of  knowledge  of  the  fraudulent  character  until  within  four 
years  of  the  time  of  commencing  the  action.  An  exception 
to  the  statute  of  limitation  in  equity  is  not  as  stringent  as  an 
express  statutory  exception.^ 

Sec.  623.  Action  for  relief  against  fraudulent  convey- 
ances.—  A  conveyance  made  to  defraud  creditors  is  good  be- 
tween the  parties.  It  cannot  be  avoided  by  the  grantor  or 
his  heirs,  either  at  law  or  in  equity.^  The  doctrine  that  a 
conveyance  made  to  defraud  creditors  is  void  only  as  against 
existing  or  subsequent  creditors  was  established  in  Ohio  at 
a  very  early  date,^  and  has  been  followed  ever  since.*  It 
matters  not  in  what  form  the  fraud  appears,  or  the  means  by 
which  it  was  accomplished,  as  equity  will  look  to  the  sub- 
stance of  the  transaction,  and  grant  relief  in  accordance  with 

1  Barton  v.  Morris,  15  O.  408.  Paige  Ch.  195 ;  Field  v.  Wilson,  6  B. 

2  Monitor  Furnace  Co.  v.  Peters,  40    Mon.  479. 

O.  S.  575.  *  Zieverink  v.  Kemper,  21  W.  L.  B. 

»  See  ante,  sec.  605.  212. 

*  O.  Code,  sec.  4982.  ^  White  v.  Brocaw,  14  O.  S.  339. 

6  Combs  V.  Watson,  32  O.  S.  228;        8Burgett  v.  Burgett,  1  O.  469 
2  C.  S.  C.  R  523 ;  Carr  v.  Hilton,  1        9  Goudy   v.  Gebhardt,  1  O.  S.  267.. 

Curtis,  390;   Humbert  v.   Rector,  7  See  Beebe's  Ohio  Citations,  p.  118. 


580  FRAUDULENT  CONVEYANCES.  [§  623. 

the  object  ami  purpose  of  the  law ;  ^  and  all  acts  and  convey- 
ances falling-  within  the  scope  of  the  statutes  regulating  trans- 
fers or  assignments  for  the  benefit  of  creditors  will  be  de- 
clared void."  lielief  will  not  be  granted  for  a  mere  moral 
wrong,  but  only  where  a  person  has  been  misled  to  his  injury, 
or  an  unconscionable  advantage  has  been  taken  of  him.^ 
Wherever  a  court  declares  that  there  is  a  secret  trust  con- 
nected with  a  conveyance  of  real  estate,  it  will,  in  the  inter- 
est of  creditors,  look  through  the  form  to  the  substance  and 
set  the  conveyance  aside  if  fraudulent.*  Such  a  conveyance 
cannot  be  avoided  by  subsequent  creditors  unless  they  can  show 
that  there  was  actual  fraud.^  A  voluntary  grantor  who  has 
made  a  conveyance  without  consideration  upon  a  secret  trust 
cannot  ask  to  have  the  same  set  aside."  Nor  can  a  debtor 
who  is  induced  by  false  representations  on  the  part  of  his 
creditors  to  assign  property  by  way  of  security,  but  in  fact  to 
prevent  an  attachment,  to  which  there  is  attached  a  secret 
trust  by  which  the  assignee  is  to  account  for  the  property 
and  save  the  debtor  harmless,  maintain  an  action  to  recover 
damages  for  the  fraud.'  A  voluntary  conveyance  made  to  a 
trustee  for  the  benefit  of  a  creditor,  his  wife  and  children,  is  not 
fraudulent  as  against  a  creditor  whose  claim  was  at  that  time 
amply  secured  by  a  mortgage.^  Where  a  person  purchases 
goods  with  knowledge  that  a  debtor  is  effecting  the  sale  to 
defraud  his  creditors,  the  latter  may  either  treat  it  as  void  and 
subject  the  goods  to  the  payment  of  their  claim,  or  compel  the 
fraudulent  vendee  to  account  for  their  value.^  The  property 
of  a  failing  debtor,  in  the  eye  of  the  law,  belongs  to  his  credit- 
ors, and  any  disposition  he  may  make  of  it  should  be  in  con- 
sideration of  their  rights ;  and  a  sale  made  by  such  a  debtor  to 
a  person  in  his  employ  on  credit  is  void  as  against  credit- 
ors.^°   In  making  a  compromise  with  creditors  there  must  be  an 

1  Booth  V.  Bunce,   33  N.  Y.   139 ;  »  Webb  v.  Roth,  9  O.  S.  430. 
Bloomingdale  v.  Stein,  42  O.  S.  168,  ^  Robinson   v.  Robinson,   17  O.  S. 
172.  480. 

2  Bloomingdale  v.  Stein,  siq^ra.  See  '^  Trimball  v.  Doty,  16  O.  S.  118. 
Loudenback  v.  Foster,  39  O.  S.  203.  8  Stephenson  v.  Donahue,  40  O.  S. 

3  Watson  V.  Erb,  33  O.  S.  35.  184. 

*  Ferguson  v.  Gilbert,  16  O.  S.  88;        ^  Bradford  v.  Beyei,  17  O.  S.  388. 
Coolido-e  V.  Melviu,  43  N.  H.  510.  i"  0"ConneIl  v.  Cruise.  2  Handy,  163. 


g  G23.]  FKAUDULENT  CONVEYANCES.  581 

equal  division ;  and  if  there  is  a  stipulation  for  an  additional 
securit}^  in  favor  of  one,  without  the  knowledge  of  the  other, 
it  will  be  declared  void.^ 

The  policy  of  the  law  in  Ohio  from  a  very  early  date  has 
been  that  a  debtor  in  failing  circumstances  may  prefer  one 
creditor-over  another.^  This  doctrine  has  been  very  decidedly 
reinforced  by  a  more  recent  case,  which  puts  at  rest  all  doubts 
upon  the  question  which  had  arisen  in  the  minds  of  many.' 
If,  therefore,  any  relief  is  desired  from  this  pernicious  rule,  it 
must  be  at  the  hands  of  the  legislature.  A  transfer  made  by 
a  debtor  to  another,  the. consideration  of  which  is  in  whole  or 
in  part  an  obligation  for  the  support  of  the  grantor  in  the 
future,  is  void  as  against  creditors.*  'No  action  will  lie  by  an 
obligee  against  an  obligor  on  a  bond,  the  consideration  of 
which  was  a  sale  made  by  the  former  to  the  latter  in  fraud  of 
creditors,  both  having  been  guilty  of  fraudulent  intent;^  and 
as  courts  are  prone  to  refuse  to  aid  stale  equity,  a  person  thus 
seeking  to  rescind  a  fraudulent  conveyance  should  not  be 
guilty  of  any  unnecessary  delay .^  It  is  not  essential  that  a 
creditor  should  first  exhaust  the  property  of  a  debtor,  or  that 
he  should  show  that  he  has  other  property,  before  he  can 
maintain  an  action  to  set  aside  a  fraudulent  conveyance."  The 
question  of  fraudulent  intent  is  the  gist  of  the  action,  and  to 
set  aside  a  conveyance  or  gift  upon  tJie  ground  of  fraud,  it 
^lould  appear  that  the  fraudulent  intent  existed  in  the  mind 
of  the  person  at  the  time  it  was  made.^  In  an  action  by  judg- 
ment creditors  to  set  aside  a  fraudulent  conveyance,  they  can- 
not set  up  the  fraudulent  conveyance  for  the  purpose  of  bar- 
ring the  debtor's  claim  to  a  homestead.*  An  administrator 
cannot  maintain  an  action  for  the  recovery  of  goods  trans- 

1  Moses  V.  Katzenberger,  1  Handy,  The   law  will  not  aid   persons  who 

46.   See  Way  v.  Langley,  15  O.  S.  392.  have  transferred  property  for  fraud- 

2Sack  V.  Hemaun,  10  Am.  LawRec.  ulent  purposes.      Emrie  v,   Gilbert, 

483 ;  s.  c,  6  W.  L.  B.  82o.    See  23  W.  W.  764. 

L.  B.  161,  article  Preference,  and  cases  ^  Constable   v.  Weaser,  7  W.  L.  B. 

cited.  113. 

if  Cross  V.  Carstens,  49  O.  S.  548.  '  Westerman  v.  Westernian,  25  O.  S. 

4  Krider   v.  Koous,  5  O.  C.  C.  321.  500. 

See  Morrison  v.  Morrison,  49  N.  H.  ^  Creed   v.  Bank,  1   O.  S.  1 ;  Lock- 

69;  Gunn  v.  Butler,  18  Pick.  248,  wood  v.  Krutn,  34  O.  S.  1. 

SGebhart  v.  Gebhart,  1  O.  S.  263.  "Sears  v.  Hanks,  14  O.  S.  298. 


582  FEACDULENT  CONVEYANCES.  [^  024. 

ferred  by  his  intestate  in  fraud  of  creditors.^  A  creditor  who 
files  a  petition  to  set  aside  a  fraudulent  conveyance  and  ob- 
tains judgment  subsequent  to  the  conveyance  does  not  ac- 
quire any  priority  over  other  creditors.-  In  an  action  to  set 
aside  a  deed  claimed  to  be  fraudulent  and  asking  for  gen- 
eral relief,  the  court  may,  instead  of  ordering  the  same  to  be 
set  aside,  decree  a  reconveyance  upon  equitable  terms.^  A 
creditor  may  bring  an  action  to  set  aside  a  fraudulent  con- 
veyance without  first  having  reduced  his  claim  to  judgment,* 
It  is  not  necessary  in  Ohio  that  the  petition  should  contain  an 
averment  that  a  debtor  has  no  property  other  than  that  which 
it  is  claimed  has  been  conveyed,  although  it  may  be  a  proper 
subject  of  inquiry  in  the  case.'^  Following  the  well-known 
rule  of  pleading  fraud,  in  actions  to  set  aside  a  fraudulent  con- 
veyance the  facts  must  be  fully  set  forth.^  The  word  "  fraud  " 
need  not  be  used  if  the  facts  alleged  constitute  fraud.'^  To 
enable  the  creditor  to  maintain  the  action  it  is  not  essential 
that  he  shall  have  first  reduced  his  claim  to  judgment,®  though 
it  is  held  necessary  elsewhere.^ 

Sec.  624.  Petition  by  judgment  creditor  to  set  aside 
fraudulent  mortgage  and  to  determine  priorities  of  liens. — 

1.  On  the day  of  ,  IS — ,  at  the term  of  the 

court  of  common  pleas  within  and  for  the  county ,  Ohio, 

the  plaintiff    recovered   a  judgment  against  the  defendant, 

J.  "W.  G.,  for  the  sum' of  s debt  and  $ costs  of  suit, 

with  interest  at  the  rate  of per  cent,  per  annum  from  the 

date  of  judgment,  according  to  the  stipulations  of  a  certain 

1  Benjamin  v,  Le  Baron,  15  O.  517.  melmann,  101  Mo.  619.  "To  say  that 

2  Stanton  v.  Keyes,  14  O.  S.  443:  a  man  acted  fraudulently  or  im- 
Sockman  v.  Sockaian,  18  O.  362.  properh-,  without  specifying  what  he 

3  Eiddle  v.  Roll,  24  O,  S.  572.  did,   is    equivalent  to    making    the 

4  Combs  V,  Watson,  32  O,  S.  228.  pleader  the  sole  judge  of  the  suflH- 

5  Gormley  v.  Potter,  29  O.  S.  597 ;  ciency  of  the  pleadings,  and  substi- 
Westerman  v.  Westerman,  25  O.  S.  tuting  his  judgment  for  that  of  the 
500;  Rounds  v.  Green,  29  Minn.  139.  court.  If  the  facts  are  stated,  the 
This  is  not  the  rule  in  other  states,  legal  conclusion  follows  as  night  fol- 
Boone's  Pleading,  sec.  149.  lows  day,   and  so  no  statement  of 

6  Reed  v.  Bott,  100  Mo.  62.  A  gen-  w  hat  conclusion  the  law  draws  is 
eral  allegation  of  fraud  is  not  suflS-  necessary."  Id,  See  ante,  sec.  638. 
rient :  the  facts  must  be  set  out  and  '  Whittlesey  v.  Delaney,  73  N.  Y. 
detailed  in  the  petition.    Id. ;  Bliss  on  571. 

Code   Pleading,  sec.   211;    Smith  v.        8  Combs  v.  Watson,  32  O.  S.  228. 
Sims,  77  ]Mo.  269 ;  Hoester  v,  Sara-        »  Boone  on  Code  PIdg.,  sec.  149,  n.  9. 


§  624.]  FKALDULENT  CONVEYANCES.  583 

promissory  note  upon  which  said  action  was  brought,  which 
said  judgment  is  in  full  force  and  wholly  unpaid  and  unsatis- 
fied, and  which  said  term  of  said  court  began  on  the day 

of ,  IS — ,  and  which  judgment  is  a  lien  upon  the  prem- 
ises hereinafter  described. 

2.  On  the day  of ,  18 — ,  the  said  J.  W.  G.,  being 

then  seized  in  fee-simple  of  the  following  described  real  estate, 

to  wit,  situate  in  the  county  of and  state  of  Ohio,  and  in 

the  township  of ,  and  bounded  and  described  as  follows: 

[description  of  real  estate],  then  conveyed  the  same  by  a  deed 
of  mortgage  to  his  brother  and  co-defendant,  E.  M.  G.,  osten- 
sibly for  the  purpose  of  securing  a  certain  promissory  note  of 
that  date,  executed  and  delivered  by  the  said  J.  W.  G.  to  the 

said  E.  M.  G.  or  order  for  the  sum  of  $ ,  two  years  after 

the  tlate  thereof,  with per  cent,  interest  thereon  from 

date  until  paid,  which  said  note  and  mortgage  was  in  truth 
executetl  and  delivered  by  the  said  J.  W.  G.  to  the  said 
E.  M.  G.  without  any  consideration  therefor,  but  with  intent 
then  and  there  and  thereby  to  cheat,  hinder,  delay  and  de- 
fraud the  creditors  of  the  said  J.  W.  G.,  and  esjiecially  the 
plaintiff,  C.  C.  H.,  who  was  at  that  time  a  creditor  of  the  said 
J.  W.  G.,  who  then  owed  plaintiff  the  debt  for  which  said 
judgment  was  rendered ;  all  of  which  facts  were  then  and 
there  well  known  to  tlie  said  E.  M.  G.  at  the  time  of  his  tak- 
ing said  note  and  mortgage. 

8.  The  ])laintifl  further  avers  that  at  the  time  of  the  making 
of  said  mortgage  the  said  J.  W.  G.  was  in  failing  circumstances, 
and  thereby  conveyed  and  incumbered  all  of  the  real  estate  of 
which  he  was  then  possessed,  without  consideration  as  afore- 
said, with  mtent  to  cover  the  same  up,  and  place  it  beyond 
tl^e  reach  of  his  creditors,  and  reserved  no  estate  whatever 
out  of  which  plaintiff's  claim  could  be  made,  or  can  be  made, 
and  is  now  wholly  insolvent. 

4.  On  the day  of  ,  IS — ,  and  w^hile  the  actions 

were  pending  against  him  in  which  the  judgments  aforesaid 
were  rendered,  he,  the  said  J.  W.  G.,  executed  and  delivered 
to  W.  H.  IS.  his  deed  of  assignment,  and  thereby  conveyed  the 
premises  aforesaid,  being  all  the  real  estate  of  which  he  was 
then  possessed,  together  with  all  his  personal  estate  and  prop- 
erty, for  the  use  and  benefit  of  the  creditors  of  him,  the  said 
J.  W.  G.,  w4iich  said  deed  was  duly  tiled  in  the  ])robate  court 

of county,  Ohio;  and  the  said  W.  H.  S.  duly  qualitied  as 

such  assignee,  and  has  been  acting  as  such  ever  since.  The 
plaintiff  further  says  that  he  called  upon  the  said  W.  H.  S., 
as  such  assignee,  and  requested  him  to  commence  an  action  in 
this  court  for  the  purpose  of  setting  aside  the  fraudulent 
mortgage  and  conveyance  aforesaid,  and  to  ascertain  validity, 
amounts  and  priorities  of  the  claims  antl  liens  of  tiie  creditors 
of  said  J.  W.  G.  upon  said  premises ;  *but  he  absolutely  refused 


684  FRAUDULENT  CONVEYANCES.  [§  625. 

SO  to  do,  and  still  refuses,  and  will  not  give  his  consent  to  be 
made  a  party  plaintiff  to  this  action  for  that  purpose,  and  he 
is  for  that  reason  made  a  partv  defendant  to  this  action. 

Said  ^Y.  TI.  S.,  as  such  assignee,  on  the day  of ,  18 — , 

filed  his  petition  in  the  probate  court  of  said  county  of ,  in 

which  petition  he  asked  for  an  order  to  sell  the  real  estate  de- 
scribed in  the  petition  of  the  plaintiff  in  this  action,  which 
said  real  estate  had  come  to  him,  the  said  S,,  under  and  by 
virtue  of  said  assignment,  for  the  purpose  of  being  admin- 
istered and  applied  to  the  payment  of  the  debts  of  said  as- 
signor. Plaintiff  says  that  he  asked  leave  to  be  made  a  party 
defendant  in  said  action  with  leave  to  answer,  which  leave 
was  by  said  court  refused. 

The  defendants  JST.  G.,  C.  G.,  etc.,  claim  some  interest  and 
lien  upon  said  premises,  the  precise  nature  of  which  is  unknown 
to  the  plaintiff;  he  therefore  asks  that  they  be  required  ta 
answer  touching  the  premises,  and  to  specially  set  forth  the 
nature  and  character  of  their  respective  claims  and  liens  upon 
said  ])remises. 

5.  The  plaintiff  therefore  prays  that  the  said  mortgage 
deed  may  be  declared  fraudulent  and  void  to  all  intents  and 
purposes;  that  the  amount  and  priorities  of  the  claims  and 
liens  of  the  i^laintiff  and  the  several  defendants  may  be  found 
and  definitely  fixed  and  declared  by  the  court,  and  that  the 
defendant  W.  H.  S.,  as  assignee,  may  be  enjoined  and  re- 
strained from  proceeding  to  sell  said  real  estate  upon  his  said 
petition  until  the  final  hearing  of  this  action,  and  until  the 
said  cloud  is  removed  from  said  title,  and  for  such  other  and 
further  relief  as  equity  and  the  circumstances  of  the  case  may 
require. 

Note. —  From  Holmes  v.  Gardner,  Supreme  Court,  unreported,  No.  2083. 

Sec.  625.  Petition  to  set  aside  fraudulent  conveyance 
and  for  sale  of  premises.— 

The  said  plaintiffs  say  that  on  the day  of ,  IS — , 

E.  L.  W.,  J.  W.  R.  and  L,  P.  recovered  judgment  in  the  court 

of  common  pleas  of  county,  Ohio,  by  the  judgment  of 

said  court  at  its term,  18 — ,  to  wit, ,  18 — ,  in  their 

favor  against  G.  II.,  in  a  certain  action  therein  pending 
against  him  and  others,  of  which  he  had  due  notice,  for  the 

sum  of  $ debt  and  § costs,  which  judgment  remains 

unpaid,  unreversed  and  in  full  force;  and  that  said  L.  P.  sold 
and  transferred  to  the  said  plaintiffs  his  interest  therein,  who 
now  own  the  same. 

That  on  the day  of ,  18 — ,  the  plaintiffs  caused  a 

writ  of  execution  to  issue  out  of  said  court  of county,. 

Ohio,  by  its  clerk  directed  to  the  sheriff  of  said  county  of y 

directing  him  to  levy   upon  and  sell  of  the  property  of  the 


I  626.]  FRAUDULENT  CONVEYANCES.  585 

said  H.  sufficient  to  pay  said  judgment  and  $ costs,  u])on 

which  writ  the  sheriff  of  said  county  of made  his  lawful 

levy ,  18 — ,  upon  the  interest  of  said  IL,  to  wit,  the  undi- 
vided   of  the  J.  H.  farm  in  said  county  of  ,  of  about 

acres,  hereafter  described,  which  farm  descended  to  the 

heirs  of  said  J.  H.  at  the  time  of  his  death,  about  the 

tiay  of  ,  18 — ,  one  of  whom  was  said  G.  H. 

That  soon  after  his  father's  death  the  said  G.  H.,  to  Avit, 
on  the dav  of ,  18 — ,  without  any  valuable  or  suffi- 
cient consideration,  and  for  the  purpose  of  placing  said  prop- 
erty bovond  the  reach  of  his  creditors,  and  hinder  the  said 
plaintiffs  in  the  collection  of  their  said  judgment,  conveyed 
the  said  land  to  his  brother-in-law,  A.  C.  D.,  who  by  deed  on 
the  same  day,  without  any  valuable  consideration,  and  for  the 
purpose  aforesaid,  conveyed  said  land  to  M.  J.  H.,  wife  of  said 
G.  IL,  who,  as  plaintiffs\are  informed  and  believe,  and  aver, 
now  holds  the  legal  title  subject  to  the  rights  of  the  plaintiffs 
therein. 

That  by  virtue  of  said  judgment  and  levy,  and  all  of  the 
premises,"  the  plaintiffs  hold  and  have  a  lien  on  said  land  for 
the  ])ayment  of  said  judgment  and  costs,  and  have  a  right  in 
equity \o  have  said  lands  sold  to  pay  the  same,  and  which  they 
cannot,  by  reason  of  the  said  conveyances  made  for  the  pur- 
pose aforesaid,  now  obtain  by  sale  on  said  execution. 

Said  farm  is  described  as  follows,  viz. :  Situated  in  the  county 
of ,  and  state  of  Ohio,  and  bounded  and  described  as  fol- 
lows: [^DesGription.'] 

The  said  G.  A.  has  not  any  other  property  or  real  estate 
unincumbered  liable  to  sale  on  execution  to  pay  said  judg- 
ment; and  was  insolvent  until  said  real  estate  descended  to 
hyn  upon  the  death  of  his  father. 

Wherefore  the  plaintiffs  ask  that  said  defendants  be  made 
parties  by  summons,  and  that,  on  final  hearing,  an  order  of 
sale  be  granted  plaintiffs  for  the  sale  of  said  premises,  if  the 
said  defendants  fail  for  such  time  as  the  court  may  order  to 
])ay  said  judgment  and  costs  and  increased  costs,  and  that  such 
other  and  further  relief  be  granted  to  them  as  law  and  equity 
may  authorize. 

Note.— From  Holland  v,  Woodburn,  Supreme  Court,  unreported,  No.  1855. 

Damcun'H.—  If  one  by  fraud  has  been  induced  to  purchase  property  at  a 
price  beyond  its  value,  the  rule  of  damages  is  the  difference  between  the 
represented  and  the  actual  value  at  the  time  of  the  purchase.  Wilkinson 
V.  Root,  W.  686.  Proof  of  fraud  must  be  clear.  Christmas  v.  Spink,  15  O. 
600. 

Sec.  626.  Petition  to  set  aside  fraudulent  deeds  and  mort- 
gages and  for  sale  of  premises. — 

Said  |)laintiff  alleges  that  on ,  18—,  said  A.  C.  A. 

and  E.  P.  A.  executed  and  delivered  to  him  their  promissory 
note  of  that  date,  and  thereby  promised  to  pay  to  him  $ 


58f)  FRAUDULENT  CONVEYANCES.  [§  626. 

in  orip  year  after   date,  with  interest  at  per  cent,  per 

annum  from  the  date  of  said  note;  on  which  no  interest  has 
been  paid  except  to ,  18—,  and  no  part  of  the  princi- 
pal.    And  on ,  18 — ,  they  executed  and  deUv^ered  to 

him  another  note  of  that  date,  and  thereby  promised  to  pay 

to  plaintiff  S in  one  year  after  date,  with  interest  at 

per  cent,  per  annum,  on  which  no  payment  has  been  made. 
Copies  of  said  notes  are  hereto  attached  and  made  a  part  of 
this  petition.  Payment  of  the  amount  due  on  said  notes  has 
been  duly  demanded  by  plaintiff  of  the  makers  of  said  note. 
And  plaintiff  alleges  that  at  the  following  dates  said  E.  P.  A. 
was  the  owner  and  seized  in  fee-simple  of  the  following  de- 
scribed real  estate  situate  in county,  Ohio,  at  which  date 

he  conveyed  the  said  premises  to  the  following  named  per- 
sons. That  when  said  conveyances  were  made  said  E.  P.  A. 
was  wholly  insolvent  and  said  conveyances  were  made  with 
the  intent^and  for  the  purpose  of  hindering,  delaying  and  de- 
frauding his  creditors,  including  said  plaintiff,  and  the  same 
were  niade  without  any  adequate  consideration,  to  wit:   On 

,  he  owned  and  conveyed  to  said  G.  A.  R  the  following  real 

estate  situate  in township  and  described  as  [descrijAionl. 

On he  owned  and  conveyed  to  said  A.  H.  the  following 

real  estate  situate,  etc.  [description^. 

For  the  further  purpose  of  defrauding  said  creditors,  includ- 
ing said  plaintiff,  said  E.  P.  A.,  on ,  IS—    without 

adequate  consideration,  executed  a  mortgage  to  said  L.  E.  on 

said  lots  ,  which  was  filed  for  record  and  is  recorded 

in  mortgage  record  book  No. ,  p. ;  and  in  addition 

thereto  said  L.  E.  holds  a  chattel  mortgage  upon  a  lar^e 
amount  of  personal  property,  amply  sufficient  to  secure  his 
entire  claim  against  said  A.  C.  and  E.  P.  A.,  said  property 
consisting  of:  [De.scri2Jtion.]     Said  mortgage  was  duly  filed 

for  record  in  the  office  of  the  township  clerk  of township, 

in  said  county,  where  said  A.  C.  A.  resided  at  the  time  of  its 
execution.     It  was  executed  by  said  A.  C.  A. 

Said  G.  H.  &  Co.  hold  a  mortgage  on  said  lots ,  and 

said  K.  executed  a  mortgage  to  said  A.  C.  A.  on  part  of  said 
propertv. 

Said  M.  A.  is  the  wife  of  said  A.  C.  A.,  and  said  S.  A.  is  the 
wife  of  said  E.  P.  A.  Said  other  defendants  claim  some  in- 
terest in  said  property,  but  have  none.  Said  A.  C.  A.  and 
E.  P,  A.  are  insolvent. 

Wherefore  the  plaintiff  demands  that  said  fraudulent  con- 
veyances and  said  mortgage  to  E.  be  set  aside,  that  said  real 
estate  may  be  sold  to  pay  said  indebtedne';^.  and  for  other 
proper  relief.  J.  &  J., 

Attorneys  tor  Plaintiff. 

Note.— From  Pendvy  v.  Allen,  error  to  circuit  court  of  Hamilton  county, 
Ohio,  Supreme  Court,  unreported  case,  No.  1887. 


§  627.1  FRAUDULE^^T    CONVEYANCES. 


587 


Sec.  627.  Petition  to  set  aside  a  fraudulently  confessed 
judgment  and  sale  thereunder. — 

[Cajjtion.] 

That  the  plaintiff,  at  the  term  of  the  court  of 

•comiuon  pleas  of  county,  Ohio,  in  the  year  18 — ,  re- 
covered a  judgment  against  CD.,  defendant,  for  the  sum  of 
,$ ,  which  judgment  still  remains  in  full  force  and  is  un- 
satisfied. 

That  on  the day  of  .  18—,  the  plaintiff  caused  an 

execution  to  be  issued  out  of  said  court  against  the  property 

of  said  C.  D..  which  execution  on  the day  of ,18 — , 

was  bv  the  sheriff  of  said  county  returned  wholly  unsatisfied, 
and  tliere  is  now  due  to  the  plaintiff  on  said  judgment  the 
sum  of  s . 

That  said  C.  D.,  from  the  date  of  the  conveyance  hereinafter 
mentioned  continuously  until  the  present  time,  has  been  and 
now  is  wholly  insolvent. 

That  on  the  day  of  ,  IS—,  before  the  entry  of 

plaintiff's  judgment,  but  after  the  indebtedness  upon  which  it 
was  rendered' had  accrued,  said  defendant  C.  D.  authorized 

two  judgments,  for  $ each,  to  be  entered  against  him  by 

confession  in  the  court  of  common  pleas  of county,  Ohio, 

in  favor  of  G.  II.,  defendant,  upon  a  pretended  indebtedness 
for  money  alleged  to  have  been  loaned  by  G.  H.  to  C.  D. 

That  on  the day  of ,  18 — ,  executions  were  duly 

issued  out  of  the  said  — —  court  upon  said  judgments,  which, 
for  want  of  goods  and  chattels  of  said  C.  D.  whereon  to  levy, 
were  duly  levied  upon  the  following  described  real  estate  be- 
longing to  said  C.  D.,  viz. :  [Describe  premises.']  Said  prem- 
ises were  sold  in  said  proceeding  under  said  levy  to  G.  II.  for 

the  sum  of dollars,  and  that  amount  thereof  credited  on 

said  judgment. 

That  said  judgments  were  fraudulently  confessed  by  said 
C.  D.  to  said  G.  H.  for  the  sole  purpose,  on  the  ])art  of  both, 
of  covering  up  the  property  of  said  C.  D.  and  defrauding  the 
plaintiff.  Said  C.  D.  was  not  indebted  to  G.  H.  in  any  sum 
w^hatever  at  the  time  of  the  confession  of  said  judgments,  and 
there  was  no  consideration  whatever  for  the  same. 

Plaintiff  therefore  ])rays  that  said  judgments  may  be  de- 
clared fraudulent  and  void  as  to  creditors  and  that  said  lands 
be  subjected  \oi\  and  that  a  receiver  may  be  api)ointed  by  the 
court  to  whom  said  defendant  shall  bedirectetl  to  convey  said 
real  estate,  and  who  shall  be  directed  to  sell  the  same  and 
apply  the  proceeds,  or  so  much  thereof  as  may  be  necessary] 
to  the  payment  of  the  ])lainti(f  s  judgment,  and  for  such  other 
relief  as  is  just  and  equitable. 

Note.— In  Clapp  v.  Nordmeyer.  2.")  Fed.  Rep.  71.  a  finii  knowing  them- 
selves to  be  insolvent,  with  a  view  of  disposing  of  all  their  property,  con- 
fessed .iudgmeuts  in  favor  of  credilors,  w1ikI>  were  held  fraiululeut 
preferences 


588  FRAUDULENT  CONVEYANCP:S.       [§g  028,  020. 

Sec.  628.  Petition  to  set  aside  a  pretended  sale  as  in 
fraud  of  creditors. — 

[Caption.'] 

[Averment  of  nature  of  claim,  etc.^  as  in  ante,  see.  6^4-"] 

That  on  the day  of ,  18 — ,  said  [judgment  debtor] 

was  engaged  in  selling  lumber  at ,  and  was  jiossessed  of 

about feet  of  lumber  of  all  kinds,  of  the  value  of  about 

dollars,  but  was  then,  and  so  remained  continuously  until 

the  present  time,  and  now  is,  insolvent,  and  unable  to  pay  his 
creditors  in  full. 

That  on  said  day  said  [judgment  Greditor\  for  the  purpose 
of  defrauding  his  creditors,  made  a  pretended  sale  of  said 
lumber  to  E.  F.,  taking  his  promissory  notes  therefor,  said  E.  F. 
well  knowing  that  the  object  of  said  [judgment  dchtor]  in 
selling  said  property  was  to  hinder,  delay  and  defraud  his 
creditors. 

That  said  E.  F.  is  wholly  insolvent,  and  has  no  means  with 
which  to  pay  said  notes  except  such  as  he  may  derive  from 
the  sale  of  said  lumber. 

That  said  judgment  remains  wholly  unpaid,  and  there  is  due 
thereon  from  the  [judgment  dehtor]  to  the  plaintiff  the  sum 
of dollars. 

That  the  property  so  assigned  to  said  E.  F.  is  of  the  value 
of  about dollars. 

Plaintiff  therefore  prays  that  said  assignment  and  transfer 
of  said  lumber  to  E.  F.  may  be  declared  fraudulent  and  void 
as  against  said  plaintiff,  that  a  receiver  may  be  apjiointed  to 
take  charge  of  said  lumber  and  sell  the  same,  and  out  of  the 
proceeds  thereof  pa}^  said  judgment  and  costs,  and  that  until 
final  hearing  in  this  cause  said  defendants,  and  each  of  them, 
be  enjoined  from  selling  or  disposing  of  said  lumber,  or  any 
part  thereof,  and  for  such  other  relief  as  justice  and  equity 
may  require. 

Sec.  629.  Petition  to  set  aside  a  fraudulent  assignment. — 

[Formal  averment  of  claim  as  iti  ante,  sec.  624:] 

That  on  the day  of ,  18 — ,  and  after  the  recovery 

of  said  judgment,  the  defendant  [judgment  creditor']  assigned 

all  his  proj^erty,  of  about  the  value  of  ^ ,  to  C.  I),  in  trust 

for  the  payment  of  his  debts. 

That  said  [judgment  dehtor]  is  not  indebted  to  E.  F.,  one  of 
the  creditors  mentioned  m  the  assignment,  in  any  sum  what- 
ever, and  his  claim  for  the  sum  of  $ is  fictitious  and  is  in- 
serted merely  for  the  purpose  of  enabling  said  [judgment 
dehtor]  to  retain  a  large  portion  of  the  proceeds  of  the  sale  of 
said  property. 

That  the  whole  amount  of  bona  fide  claims  against  said 
[judgment  debtor]  is  about  the  sum  of  % . 

That  said  assignee  had  full  knowledg^e  of  the  fraudulent 
character  of  said  assignment  at  the  time   he  accepted  said 


§  630.]  FRAUDULENT  CONVEYANCES.  589 

trust,  and  has  collected  money  and  other  property  from  the 
assets  of  said  assignor  of  the  value  of  § . 

That  said  \_judg7nent  debtor']  at  the  time  plaintiff  recovered 
his  said  judgment  had,  nor  at  any  time  since  then,  and  now 
has,  no  other  property  than  that  included  in  said  assignment, 
and  the  same  was  made  by  the  defendant  \_judgment  debtor] 
with  the  intent  to  hinder,  delay  and  defraud  creditors,  and  he 
still  retains  possession  of  said  property  under  a  pretense  that 
he  is  the  agent  of  said  C.  D. 

That  no  part  of  said  judgment  has  been  paid,  and  there  is 
due  thereon  from  the  defendant  to  the  plaintiff  the  sum  of 


Plaintiff  therefore  prays  that  said  assignment  may  be  de- 
clared fraudulent  and  void,  and  that  said  defendants  may  be 
required  to  account  for  all  of  said  property  received  by  them, 
and  that  a  receiver  may  be  appointed  to  take  possession  and 
dispose  of  said  property  and  apply  the  proceeds  thereof,  or  so 
much  as  may  be  necessary,  to  the  payment  of  the  plaintiff's 
judgment,  and  for  such  other  relief  as  justice  and  equity  may 
require. 

Sec.  630.  Petition  to  set  aside  fraudulent  deed. — 

\^Formal  averment  of  claim,  as  in  ante,  sec.  6^4-'} 

That  they  are  copartners  in  the  wholesale  notion  business 

in  the  city  of ,  under  the  name,  firm  and  style  of  B.  &  C, 

and  that  a  certain  E.  F.  was  and  is  now  engaged  in  the  retail 
dry  goods  and  notion  business  in  said  city,  and  during  the 
present  year  and  prior  thereto  has  become  largely  indebted 
to  plaintiffs  for  goods  sold  by  them  to  him. 

That  said  indebtedness  being  long  overdue,  the  plaintiffs 

brpught  suit  thereon  in  the court  of county,  Ohio, 

against  the  said  E.  F.,  and  on  the day  of ,  18 — ,  ob- 
tained judgment  against  him  for  $— —  and  costs,  and  on  the 

day  of ,  18 — ,  they  caused  an  execution  on  the  said 

judgment  to  be  issued  to  the  sheriff  of county,  Ohio,  and 

the  same  was  levied  on  certain  real  estate  in  the  city  of , 

of  said  county  of ,  to  wit:  [description],  then  and  for  a 

long  time  previously  in  the  possession  of  the  said  E.  F. 

That  the  said  real  estate,  and  all  the  right,  title  and  interest 

of  the  said  E.  F.  therein,  was  on  the day  of  ,  18 — , 

sold  under  said  execution  to  satisfy  said  debt,  and  the  plaint- 
iffs became  the  purchasers  thereof,  and  thereafter  received 
from  the  sheriff  of  said  county  a  deed  therefor. 

That  at  the  time  of  the  institution  of  the  plaintiff's  suit  and 
down  to  the  day  before  they  obtained  judgment  thereon,  the 
said  E.  F.  was  seized  and  possessed  in  fee-simple  of  the  said 
premises,  but  that  on  said  day  before  the  plaintiffs  obtained 

judgment,  to  wit,  on  the day  of ,  18 — ,  the  said  E.  F., 

for  a  pretended   consideration  of  dollars,  conveyed  the 

.said  real  estate  bv  a  deed  of  that  date  to  a  certain  G.  II. 


590  FRAUDULENT  CONVEYANCES.      [§§  631,  632: 

That  notwithstanding  the  said  conveyance  the  said  E.  F. 
has  since  continued,  and  still  continues,  to  live  on  and  occupy 
the  premises  described  in  said  deed. 

That  at  the  time  of  his  making  said  deed  the  said  E.  F. 
was  largely  indebted  and  insolvent,  and  had  not  the  means  of 
paying  his  said  debt  apart  from  the  property  so  conveyed 
by  him,  and  since  said  conveyance  has  been  possessed  of  no 
other  property  whatever;  and  that  the  said  conveyance  was 
fraudulently  made  and  for  simulated  and  pretended  considera- 
tions, and  was  made  to  hinder,  delay  and  defraud  the  plaint- 
iffs and  his  other  creditors  of  their  just  and  lawful  debts. 

Wherefore  the  plaintiffs  pray  that  the  said  deed  from  the 
said  E.  F.  to  the  said  G.  H.  of  the  said  real  estate  may  be  de- 
clared to  be  void,  and  may  be  vacated  and  annulled,  and  that 
the  plaintiffs  may  have  such  other  and  further  relief  as  their 
case  may  require. 

Sec.  631.  Defenses  to  actions  to  set  aside  fraudulent  con- 
veyances.—  Where  a  grantee  by  the  fraud  of  his  confederates 
obtains  from  another  a  deed  for  property,  but.  instead  of  hav- 
ing it  recorded,  sells  the  property  to  an  innocent  purchaser 
and  makes  a  deed  direct  from  himself  to  the  purchaser,  de- 
stroying the  unrecorded  deed,  and  obtains  a  new  and  defect- 
ively executed  deed  from  his  grantee,  thereby  securing  the 
consideration,  he  is  estopped  from  disputing  the  title  of  such 
innocent  person  to  the  land.^  An  answer  by  an  heir  to  whom 
lands  were  fraudulently  transferred  by  judicial  sale  to  a  peti- 
tion to  have  the  same  set  aside  for  fraud,  alleging  that  ex- 
penditures for  the  benefit  of  the  estate  have  been  made  and 
asking  to  be  compensated  for  the  same  out  of  the  proceeds  of 
sale,  is  good  as  against  a  demurrer.^  It  may  be  shown  under 
a  general  denial  that  a  transfer  was  fraudulent  and  void  as 
against  creditors.^  And  so  the  defendant  may  show,  under  a 
general  denial,  that  the  property  was  his  homestead."* 

Sec.  632.  Answer  by  Innocent  purchaser  of  mortgage  at- 
tacked  as  fraudulent. — 

Defendant  says  that  on  the  day  of  ,  18—,  said 

E.  M.  G.,  the  mortgagee  to  whom  the  premises  described  in 
plaintiff's  petition  were  conveyed  by  said  mortgage,  for  a 
valuable  consideration  sold,  transferred  and  assigned,  by  an 
indorsement  written  on  said  mortgage,  the  said  mortgage  so 
made  by  the  said  J.  W.  G.  to  E.  M.  G.  to  B.,  C.  &  Co.,  with 
the  interest  and  all  rights  thereafter  to  accrue  thereon,  who- 

1  Wilson  V.  Hicks.  40  O.  S.  418.  "  Bailey  v.  Swain,  45  O.  S.  657. 

^  Boraberger  v.  Turner,  13  O.  S.  263.        *  Hibben  v.  Soyer,  33  Wis.  319. 


§  632.]  FRAUDULENT    CUNVKVAXCi:^.  591 

at  the  time  of  said  sale  and  transfer  had  no  notice,  knowl- 
edge or  information  that  any  one  claimed  that  said  mortgage 
was  made  to  hinder,  delay  or  defraud  the  creditors  of  J.  W.  G. 
or  either  of  them,  or  that  it  was  made  for  that  juirpose. 

On  the  same  day  said  B„  C.  &  Co.,  for  a  valuable  considera- 
tion then  paid  them  by  W.  T.  G.,  sold,  transferred  and  as- 
signed, by  written  memorandum,  said  dollars  of  said 

mortgage,  in  writing,  to  said  A¥.  T.  G.,  who  at  the  time  of 
said  sale  had  no  notice,  knowledge  or  information  that  it  was 
claimed,  or  that  said  mortgage  was  executed  by  said  J.  W.  G.,. 
and  received  by  said  C.  M.  G.,  for  the  purpose  of  hindering, 
delaying  or  defrauding   the  creditors  of  said  J.  W.  G.,  or 

either  of  them;  and  on  the  day  of ,  18 — ,  the  s^id 

W.  T.  G.j  for  a  valuable  consideration  then  paid  to  him  by 
J.  G.,  sold,  transferred  and  assigned,  by  a  written  memo- 
randum, said dollars  of  said  mortgage  to  said  J.  G.,  who 

also  had  no  notice,  knowledge  or  information  that  said  mort- 
gage was  claimed  to  have  been  made,  or  was  made,  for  the 
purpose  of  defrauding  the  creditors  of  said  J.  W.  G. 

On  the day  of  '■,  IS — ,  the  executors  of  said  J.  G.^ 

deceased,  said  executors  being  thereunto  duly  authorized, 
for  a  valuable  consideration  then  paid  to  them  by  this  de- 
fendant, sold,  transferred  and  assigned  dollars  of  said 

mortgage  to  this  defendant,  by  a  written  memorandum  on 
said  mortgage,  and  this  defendant  at  the  time  had  no  no- 
tice, knowledge  or  information  that  said  mortgage  was  exe- 
cuted for  the  purpose  of  hindering,  delaying  or  defrauding 
the  creditors  of  said  J.  W.  G.,  or  either  of  them.  And  so  this 
defendant  says  that  he,  and  those  under  whom  he  claims,  are 
innocent  purchasers  of  the  interest  which  he  now  holds  under 
saiQ  mortgage  in  the  premises  described  in  plaintiff's  petition, 
for  a  valuable  consideration,  and  without  notice  of  an}'-  infirm- 
ity or  defect  in  the  title  of  said  E.  M.  G.  in  said  premises, 
from  whom  they  purchased  the  interest  aforesaid. 

Defendant  therefore  prays  that  said  petition,  as  to  him,  be 
dismissed,  and  that  he  recover  his  costs. 


CHAPTEK  40. 


GAMING. 


Sec.  633.  Parties  to  the  action. 

634.  What  constitutes  gaming. 

635.  Action  under  gaming  stat- 

utes. 

636.  Same  continued  —  The  peti- 

tion. 

637.  Petition    for    recovery    of 

money  lost  at  gaming. 


Sec.  638.  Another  form  of  petition 
for  recovery  of  money 
lost  at  gaming. 

639.  Petition  for  the  recovery  of 

money  lost  on  a  wager. 

640.  Petition  to  enforce  the  lien 

of  a  judgment  rendered 
under  gaming  statute. 


Sec.  633.  Parties  to  the  action, —  Any  person  who  loses 
money  or  anything  of  value  at  gaming/  or  one  who  is  in  any 
degree  dependent  for  support  on  or  entitled  to  the  earnings  of 
the  loser,^  may  bring  an  action  to  recover  money  so  lost.  If 
the  loser  fails  to  sue,  a  third  person  may  bring  an  action 
and  recover  against  the  winner  for  the  use  of  the  person  pros- 
ecuting.' And  one  who  merely  furnishes  money  to  another 
for  the  purpose  of  betting,  and  is  present  at  the  game  at 
which  the  money  was  lost,  may  recover  as  though  he  had 
himself  lost  the  money.^  In  an  action  for  mone}''  lost  at  gam- 
ing it  is  improper  to  join  the  owner  of  ihe  building  with 
those  concerned  in  the  g^ame.^  An  indorsee  of  a  check  iriven 
for  money  lost  at  a  game  of  cards  cannot  recover  on  it  against 
the  drawer,  even  though  a  honafide  holder  for  valiie,^  as  the 
transaction  falls  within  the  statute  relating  to  gaming.  It 
has  been  held  that  the  right  of  action  for  money  lost  at  gam- 
ing is  assignable,  and  not  the  mere  personal  privilege  of  the 
loser.''  Members  of  a  copartnership  may  join  in  an  action  to 
recover  property  lost  by  one  of  them  at  wagering,  even  with 
out  the  knowledofe  of  the  other.®     A  right  of  action  will  not 


1  R.  S.,  sec.  4373. 

2  R  S.,  sec.  4371. 

3  R  S.,  sec.  4373. 

4  Mead  v.  McGraw,  19  O.  S.  55. 

5  Smith  V.  Wyatt,  2  C.  S.  C.  R  12. 


^Lagonda  N.  Bank  v,  Portner,  46 
O.  S.  381. 

7  Meech  v.  Stoner,  19  N.  Y.  26.   Sec 
Wai-d  V.  Ritt,  7  W.  L.  B.  76. 

8  Cannon  v.  Chenney,  8  0.  C.  C.  143 
(1894). 


I  634.]  GAMING.  593 

lie  under  the  statutes  relating  to  gaming  against  a  tliird  person 
who  pays  money  lost  at  betting  to  the  winner  under  the  direc- 
tion of  the  person  losing  it.^ 

Sec.  634.  What  constitutes  gaming.—  The  keeping  of  any 
bowling  or  nine-pin  alley,-  or  any  bets  on  election,^  or  the  sell- 
ing of  pools  on  an  election,  or  upon  the  result  of  any  trial  or 
contest  of  skill,  speed  or  power  of  endurance  of  man  or  beast,* 
or  the  keeping  or  exhibiting  of  any  gambling  table  (except 
billiards)  for  game  or  to  win  any  money,  or  faro  or  keno 
bank,  or  any  gambling  device,^  or  any  contract  to  have  or  to 
give  to  himself  or  another  any  option  to  sell  or  buy  at  a  future 
time  any  grain  or  other  commodity,"  or  the  exhibition  of  a  pup- 
pet show  for  money,^  are  all  branded  as  gambling  transactions 
by  statute.  An  agreement  to  sell  a  lot  of  hogs  at  a  certain 
price,  to  be  paid  for  upon  the  election  of  a  certain  person  to 
office,  is  a  wager  within  the  meaning  of  the  statutes  and  can- 
not be  enforced.^  The  statutes  are  considered  in  a  broad 
sense,  and  are  held  to  include  within  their  meaning  a  bet  upon 
the  result  of  a  game,  sport,  horse-race  or  dog-fight,  or  a  wager 
staked  upon  an  election  or  upon  the  future  selling  of  bohemian 
oats  at  extravagant,  fictitious  prices  assumed  in  advance,  which 
acts  are  therefore  void.^  Where  there  is  no  intention  to  deliver 
commodities,  but  only  to  deal  and  speculate  in  them  by  sym- 
bolical purchases  and  sales  at  market  prices,  such  as  futures  or 
optfons,  or  where  the  transaction,  though  in  proper  form,  is  in 
fact  fictitious  under  whatever  form  it  may  appear,  the  courts 
have  stamped  them  gambling  transactions  and  therefore  void.^" 
The  fact  that  one  of  the  parties  to  such  a  transaction  assumes 
to  make  the  purchase  or  sell  as  a  commission  merchant  merely, 
will  not  alter  the  relation,  and  the  loser  may  recover  from  the 
winner."  And  where  it  is  the  intention  of  the  parties  that 
property  is  not  to  be  delivered,  but  that  one  party  is  to  pay 

iRoulstone  v.  Moore,  19  W.  L.  B.        9  Williams  v.  Keel,  17  W.  L.  B.  118. 

387.  10  Williams  V.  Keele,  .sitj[«T»;  Norton 

2  R  S.,  sec.  7000.  v.   Blinn,   39   O.   S.    145 ;  Harper  v. 

»  R  S.,  sec.  6939a.  Grain,  36  O.  S.  338.  What  are  known 

*  R  S.,  sec.  G939a.  as     bohemian     oats    contracts    are 

*  R  S.,  sec.  6934.  fraudulent,  immoral  and  void.  Car- 
«  R  S.,  sec.  6934a.  ter  v.  Lilley,  3  O.  C.  C.  364 ;  Widoe  v. 
7  R  a,  sec.  7005.  Webb,  20  O.  S.  431. 

«  Lucas  V.  Harper.  24  O.  S.  328.  "  Lester  v.  Buel,  49  O.  S.  240. 

38 


594  GAMING.  [§  635. 

to  the  other  the  difference  between  the  contract  price  and  the- 
market  price  at  the  time  s])ecilied  for  executing  the  contract, 
the  same  is  a  gambling  contract.^  A  contract  to  deliver  prop- 
ert}^  to  another  with  the  understanding  that  it  will  be  a  sale 
in  the  event  of  an  election  of  a  certain  person  is  a  wager,  and 
may  be  rescinded  before  the  election  takes  place.- 

Sec.  635.  Actions  under  gaming  statutes. —  In  an  action 
for  the  recovery  of  money  or  other  valuable  thing  lost  by 
playing  at  any  game,  or  by  the  means  of  anj''  bet  or  wager,, 
the  defendant  ma}^  upon  the  filing  of  an  affidavit  by  the 
plaintiff  stating  the  nature  of  the  claim,  that  it  is  just,  and 
the  amount  thereof,  be  arrested  before  judgment.^  It  has. 
long  been  provided  by  statute  that  a  person  who  loses  money 
or  other  thing  of  value,  and  lias  paid  or  delivered  the  same  to- 
the  winner,  may  within  six  months  after  such  loss  recover  the 
same  in  a  civil  action.*  Money  deposited  with  a  stake-holder 
may,  when  the  bet  is  declared  off  by  the  parties,  be  recovered 
from  hira.^  Recovery  may  also  be  had  for  money  expended 
in  the  purchase  of  any  lottery  or  policy  ticket  or  chance,  or 
in  or  on  account  of  any  game  of  chance.^  The  well-known 
rule  that  the  law  will  leave  parties  to  an  illegal  transaction 
where  it  finds  them  ap]ilies  in  all  its  force  to  gaming  trans- 
actions,' and  will  aid  neither  party  to  a  gambling  contract  to 
enforce  the  same  while  it  remains  executory,  in  whole  or  in 
part;  nor  will  it  rescind  the  same  Avhen  executed.^  While  the 
law  will  not  enforce  an  illegal  contract,  yet  it  will  authorize 
the  recovery  of  money  received  thereunder."  One  of  the  par- 
ties to  a  gaming  contract  cannot  recover  money  upon  a  note 
given  in  pursuance  thereof,  nor  can  the  other  recover  damages 
sustained  by  its  breach.^"  But  there  are  cases  where  a  note 
which  has  been  executed  in  a  gambling  transaction  will  be 

1  Kahn  v.  Walton,  46  O.  S.  195.  Kahn  v.  Walton,  46  O.  S.   195;  Shir- 

2  Harper  v.  Grain,  36  O.  S.  338.  ley  v.  Ulsh,  3  O.  C.  C.  401. 

3R.  S.,  sees.  5491-3.  s  Carter  v.  Lilley,  3  O.  C.  C.  364; 

4  R.  a,  sec.  4373 ;  Hoss  v.  Layton,  3  Widoe  v.  Webb,  30  O.  S.  431.     It  will 

O.  S.  353 :  Veach  v.  Elliott,  1 0.  S.  139.  not  set  aside  a  deed  executed  upon 

SBarnettv.  Neill,W.  473.     In  such  the  copsideration  of  a  bet  upon  the 

cases  a  demand  and  refusal  is  first  result  of    an  election.      Thomas  v. 

necessary.      Ward  v.    Ritt.  10   Am.  Cronise,  16  O.  54. 

Law  Rec.  567 ;  7  W.  L.  B.  76,  138.  "  Norton  v.  Blinn,  39  O.  S.  145. 

6  R.  s.^  sec.  4371.  '"  See  Grifiin  v.  Telegraph  Co.,  9  W. 

"Norton    v.    Blinn.   39   O.    S.  148;  L.  B.  33. 


§§  630,  037.]  GAMING.  595 

valid,  and  enforced.^  An  action  for  the  recovery  of  money  or 
other  property  lost  on  a  bet  or  wager  is  an  action  in  the  nat- 
ure of  a  penalty  or  forfeiture,  within  the  meaning  of  the 
code.^ 

Sec.  636.  Same  continued  —  The  petition. —  In  stating  a 
cause  of  action  for  the  recovery  of  money  lost  at  gaming,  it 
will  be  sufficient  for  the  plaintiff  to  allege  that  the  defendant 
is  indebted  to  plaintiff,  or  that  he  has  received  to  the  plaint- 
iff's use  the  money  so  lost  and  paid,  or  converted  the  goods 
of  the  plaintiff  to  the  defendant's  use,  whereby  the  action  ac- 
crued to  him,  without  setting  forth  the  special  matter.'  To 
recover  property  or  money  lost  at  gaming  from  one  to  whom 
it  has  been  transferred,  it  is  not  necessary  that  demand  be  made 
therefor.  But  where  the  money  comes  into  the  hands  of  a 
person  voluntarily,  there  can  be  no  liability  upon  the  part  of 
such  person  to  return  it  until  demand  has  been  made  upon 
him  for  it.*  In  an  action  for  the  recovery  of  money  lost  at 
gaming,  an  allegation  that  at  the  time  the  game  was  played 
and  money  lost  by  plaintiff  the  defendant  was  the  owner  of 
the  building  in  which  the  game  was  played  and  the  money 
lost,  that  he  knowingly  permitted  the  same  for  the  purpose 
of  gaming  for  mone}',  and  for  the  game  with  plaintiff,  is,  as 
against  a  general  demurrer,  a  sufficient  averment  of  the  unlaw- 
ful* use  and  occupation  of  the  building.^  It  is  sufficient  to 
state  the  aggregate  amount  of  loss,  or  the  excess  of  loss  over 
the  winnings,  between  specified  dates,  without  proving  the 
amount  and  date  of  each  particular  loss,  or  the  particular 
agent  or  proprietor  to  whom  each  sum  was  paid.® 

Sec.  637.  Petition  for  I'ecovery  of  money  lost  at  gaming. 

Now  comes  the  plaintiff,  and  for  his  cause  of  action  gays 
that  the  defendant  is  indebted  to  him  in  the  sum  of  $ — — 
received  to  the  plaintiff's  use,  won  of  plaintiff  at  gaming,  and 

by  him  paid  to  defendant  between  the of  and  the 

of  -,  18 — -,  whereljy  an  action  accrued   to   plaintiff 

under  the  statute  against  gaming,  and  for  which  plaintiff  asks 
judgment  with  interest  from . 

Note.—  A  demurn  r  was  filed  to  this  form  which  was  sustained  by  the 
court  of  common  pleas,  but  reversed  by  tlie  circuit  court  of  Cuyahoora 
county,  w'hich  was  allirmed  by  the  supreme  court  in  Kelley  v.  Castle,  27 
W.  L.  B.  287,  without  rei'ort. 

1  Stewart  v.  Simpson,  2  O.  C.  C.  415 ;  *  Ward  v.  Ritt,  7  W.  L.  B.  7(3. 

R.  S.,  sec.  4269.  'Binder  v.  Finkbone,  25  O.  S.  103. 

-Cooper  V.  Rowley,  29  O.  S.  547.  fiLear  v.  McMillan,  17  O.  S.  4G4. 
■■  '^.  S..  sec.  4270. 


596  GAMING.  [^§  G38-04U. 

Sec.  638.  Another  form  of  petition  for  recovery  of  money 
lost  at  gaming. — 

[Captio7i.] 

The  plaintiff  above  named  says  there  is  clue  to  him  from  the 

defendants  above  named  the  sum  of  $ with per  cent. 

interest  thereon  from  ,   18 — ,  for  money  lost   by  said 

plaintiff  and  paid  to  said  defendants  on  said day  of , 

18 — ,  at  the  city  of ,  county  of and  state  of  Ohio,  by 

playing  a  certain  game  of  chance  commonly  called  faro,  the 
defendants  then  and  there  playing  the  said  game  with  the 
plaintiff,  and  then  and  there  winning  the  said  sum  from  the 
plaintiff. 

Wherefore  plaintiff  asks  judgment  against  said  defendants 
for  said  sum  of  $ . 

Sec.  639.  Petition  for  the  recovery  of  money  lost  on  a 
wager. — 

M.  B.  L.,  on  the  day  of ,  18 — ,  at  said  county  of 

,  was  indebted,  and  still  is  indebted,  to  the  said  H.  H.,  the 

plaintiff,  in  the  sum  of  $ for  money,  before  that  time  ami 

within  six  inonths  before  the  commencement  of  this  suit,  to 

wit,  on  the  day  of ,  18 — ,  lost  by  the  said  plaintiff, 

and  by  him,  the  said  plaintiff,  paid  to  the  said  defendant,  to  wit, 
at  the  county  aforesaid,  upon  a  bet  and  wager  then  and  there 
made  by  and  between  the  said  defendant  and  the  said  plaintiff, 
whereby  an  action  hath  accrued  to  the  said  plaintiff,  according 
to  the  act  against  gaming,  to  demand  and  have  from  the 
said  defendant  the  said  sum  of  $ .  Yet  the  said  defend- 
ant hath  not  jiaid  the  same   nor  any  part  thereof.     And  also 

for  that,  whereas,  on  the day  of ,  18 — ,  at  the  said 

county  of ,  and  within  six  months  before  the  commence- 
ment of  this  suit,  the  said  defendant  received  for  the  use  of 

the  said  plaintiff  one  other  sum  of  $ ,  being  money  then 

and  there  bet  and  wagered  by  and  between  the  said  plaintiff 
and  the  said  defendant,  and  afterward,  to  wit,  on  the  day 
and  year  aforesaid,  at  the  county  aforesaid,  lost  by  said 
plaintiff,  and  paid  to  and  received  by  said  defendant  as  the 
winner  of  such  bet  and  wager,  whereby  an  action  hath  ac- 
crued to  said  plaintiff,  according  to  the  form  of  an  act  entitled 

"An  act,"  etc.,  jmssed  ,  to  demand  and  have  from   the 

said  defendant  the  said  sum  of  $ ,  yet  the  said  defendant 

has  not  paid  said  sum  of  money  nor  any  part  thereof. 

[  Prayer.'] 

Note.—  From  Hoss  v.  Lay  ton,  3  O.  S.  52. 

Sec.  640.  Petition  to  enforce  the  lien  of  a  judgment  ren- 
dered under  gaming  statute. — 

That  at  the term  of  the  court  of  common  pleas  of 

county,  Ohio,  in  a  certain  action  wherein  W.  II.  was  plaintiff 
and  F.  Tl.  and  J.  S.  were  defentlants,  the  ]5hiintiff  tluly  recov- 


§  640.]  GAMING.  597 

ered  a  judgment  against  the  said  J.  S.  for  the  sum  of 

dollars. 

That  said  action  was  brought  by  the  plaintiff  against  said 
R  and  S.  under  \]iere  state  gaming  statute],  for  the  recovery 
from  the  said  R.  and  S.  of  certain  money  staked  and  betted 
by  plaintiff  with  the  said  F.  li.  and  J.  S.  on  a  certain  game 
called  faro,  which  said  judgment  in  favor  of  said  i)laintiff  and 
against  said  J.  S.  as  aforesaid  was  for  the  amount  found  by 
said  court  to  have  been  staked  and  betted  by  said  plaintiff 
with  said  S.  on  said  game  and  won  by  said  S.,  and  paid  over 
to  him  by  the  ])laintiff. 

That  said  judgment  is  still  in  force,  unreversed,  and  no  part 
thereof  has  been  paid. 

That  said  game  of  faro,  in  which  said  sum  of  money  was 

staked  and  betted  and  lost  by  plaintiff,  was  played  on  the 

tlay  of ,  18 — ,  at  and  in\i  certain  building  owned  by  the 

said  A.  B.,  situate  in  the  city  of ,  county  of ,  state 

of  Ohio,  of  which  the  said  A.  B.  was  then  and  now  is  the 
owner,  and  is  described  as  follows,  to  wit:  [Give  description-'] 

Plaintiff  says  that  at  the  time  said  game  was  played  and 
said  money  was  staked  and  betted  by  said  plaintiff  on  said 
game  with  said  S.,  and  lost  by  plaintiff  and  paid  over  to  said 
8.  as  aforesaid,  and  for  a  long  time  before  that,  said  A.  B. 
knowingly  permitted  the  room  in  said  building  in  which  said 
game  was  played  to  be  used  by  said  S.  for  the  purpose  of  gam- 
ing for  money,  and  for  the  purpose  of  said  game  of  faro  with 
plaintiff. 

Plaintiff  therefore  prays  the  court  to  declare  the  judgment 
aforesaid  a  lien  on  said  building  and  real  estate,  and  for  an 
oraer  that  said  real  estate  and  building  may  be  sold  for  the 
satisfaction  of  the  judgment,  interest  and  costs  of  suit  afore- 
said, and  for  all  proper  relief. 

NOTB.— From  Binder  v.  Finkbone,  25  O.  S.  103. 


CHAPTEK  41. 


GUARANTY. 


Sec.  641.  Parties. 

642.  Rule  as  to  alleging  demand 

and  notice. 

643.  Actions  upon   guaranty  — 

Pleading. 

644.  Petition  on  guaranty  bond 

for  payment  of  money  by 
agent 

645.  Petition  on  guaranty  to  pay 
i  debt  of  third  person  on 

condition  that  time  is  ex- 
tended to  the  latter. 


Sec.  646.  Petition  on  guaranty  to  pay 
the  debt  of  another  upon 
creditor  agreeing  to  re- 
lease lien. 

647.  Petition  on    guaranty  for 

payment  of  rent 

648.  Defenses  to  actions  on  guar- 

auty. 

649.  Answer  that  guaranty  was 

made  upon  condition  that 
others  should  sign  as  prin- 
cipal. 

650.  Answer  setting  up  want  of 

diligence  against  princi- 
pal. 


Sec.  641.  Parties. —  Where  a  guaranty  is  written  upon  a 
contract  at  the  time  it  is  executed,  the  guarantor  becomes 
an  original  contractor,  and  the  parties  may  be  sued  jointly 
or  severally.^  A  person  who  writes  his  name  upon  a  note 
in  transferring  it,  guarantying  the  payment  at  maturity,  is  a 
proper  party  to  be  sued  jointly  with  the  raaker.^  A  subscriber 
to  an  institution  of  learning  or  other  benevolent  object,  and 
a  person  guarantying  payment  thereof,  may  be  joined  in 
the  same  action  upon  the  subscription.^  The  guarantor  ami 
the  principal  debtor  are  not  joint  promisors.*  A  contract  of 
guaranty  being  assignable,  an  assignee  thereof  may  bring  suit 
upon  it.^     It  is  held  that  where  a  stranger  writes  a  guaranty 


1  Leonard  v.  Sweetzer,  16  O.  1 ; 
Gale  V.  Van  Arman,  18  O.  336 ;  Mar- 
vin V.  Adamson,  11  la.  371 :  Tucker 
V.  Shiner,  24  la.  334;  Hendricks  v. 
Fuller,  7  Kan.  331.  Contra,  Allen 
V.  Fosgate,  11  How.  Pr.  318 ;  Graham 
V.  Ringo,  67  Mo.  324;  Central  Sav- 
ings Bank  v.  Shine,  48  Mo.  463. 


2Kautzman  v.  Weirick,  26  O.  S. 
380.  See  Stone  v.  Rockefeller,  29  O.  S. 
625. 

3  Neil  V.  Board  of  Trustees,  31  O.  S. 
15. 

*  Deming  v.  Board  of  Trustees,  31 
O.  S.  41. 

5  Small  V.  Sloan,  1  Bosworth,  353. 


§  642.]  GCARANTT. 


599 


upon  a  note  he  may  be  sued  jointly  with  the  maker.^  Under 
the  Ohio  code  it  is  held  that  a  guarantor  cannot  be  joined 
in  an  action  with  an  original  contractor;  yet  if  the  instru- 
ment be  in  the  form  of  the  original  contract  of  one  of  the  de- 
fendants, and  the  guaranty  of  the  other,  and  were  executed 
upon  the  same  consideration,  and  at  the  same  time,  taking 
eifect  at  the  same  .time,  they  will  then  be  regarded  as  orig- 
inal contractors  and  may  be  sued  jointly.^ 

Sec.  642.  Rule  as  to  alleging  deniand  and  notice.— Where 
the  guaranty  is  conditional  the  guarantor  cannot  be  charged 
unless  payment  is  demanded  of  the  maker  when  due,  and 
notice  of  the  non-payment  given  to  the  guarantee.'  But 
where  it  is  absolute  and  unconditional,  no  averment  of  de- 
mand and  notice  need  be  made  in  the  petition;*  nor  is  it  nec- 
essary to  give  notice  of  the  default  to  charge  an  absolute 
guarantor  of  an  existing  demand,  if  the  guaranty  is  made 
subsequent  to  such  default. ^  Nor  is  it  necessary  that  demand 
be  made  upon  and  notice  given  the  makers  of  a  note  at  ma- 
turity, to  charge  the  payee,  who  has  made  a  special  guaranty 
of  its  collectibility,  by  due  course  of  law;  a  failure  in  this  re- 
spect will  not  discharge  the  guarantor.**  A  guaranty  that  a  note 
shall  be  paid,  which  is  made  upon  consideration  that  the  payee 
delay  the  payment  thereof,  is  an  original  agreement,  and 
it  is  not  necessary  that  demand  and  notice  be  made  upon  the 
guarantor.^  But  demand  and  notice  are  requisite  to  charge  a 
guarantor  where  the  fact  of  his  liability  rests  within  the 
knowledge  of  the  guarantee,  or  is  dependent  upon  his  option.^ 
It  is  also  necessary  that  the  guarantee  give  notice  of  his  ac- 
ceptance and  intention  to  act  under  it,  where  the  instrument 

1  Gale  V.  Vau  Ariiiau,  18  O.  S.  336.  be  given  at  once  to  the  guarantor. 

2  Lamping  v.  Cole,  5  W.  L.  M.  187 ;  Taylor  v.  Wetniore,  10  O.  490.  A  de- 
19  Barb.  638;  11  How.  Pr.  218;  8  mand  must  be  made  upon  a  person 
N.  Y.  214.  not  a  party  to  a  note  who  writes  a 

3  Greene  v.  Dodge,  2  O.  498.  guaranty  thereon.     Parker  v.  Riddle. 
*  Clay  V.  Edgerton.  19  O.  S.  549 ;     11  O.  103. 

Wise  V.   Miller,  45  O.   S.    388 ;  Pow-  5  Bonebrake  v.  King,  49  Kan.  296 ; 

ers  V.  Bumcratz,  12  O.  S.  273;  Bash-  31  Pac.  Rep.  1007. 

ford  V.  Shaw,  4   O.   S.   266;  Brown  6  Forest  v.  Stewart,  14  O.  S.  246. 

V.  Curtiss,  2    Conist.   225  ;  Breed   v.  See  Kyle  v.  Green,  14  O.  490. 

Hillhouse,  7  Conn.  523.    Where  a  bill  'Reed  v.  Evans.  17  O.  128. 

of  goods  is  taken  upon  the  faith  of  ^  Bashford  v.  Shaw,  4  O.  S.  263. 

a  letter  of  credit,  notice  tiiereof  must 


600  ■  GUARANTY.  [§  613. 

is  in  legal  effect  an  offer  or  proposal,^  A  defense  as  to  delay 
of  notice,  that  the  note  guarantied  could  not  be  collected,  may 
be  made  to  show  that  the  guarantor  was  injured  thereby.'^ 

Sec.  643.  Actions  upon  guaranty  —  Pleading. —  It  is  the 
well-established  rule  of  construction  that  the  guarantor  is  bound 
only  by  the  strict  terms  of  his  contract,  and  that  the  same  is 
liberally  construed  in  his  favor.^  Even  though  a  considera- 
tion be  shown  by  the  writing  constituting  the  guaranty,  it  is 
nevertheless  necessary  that  the  petition  should  aver  that  it 
was  supported  by  a  consideration.^  If  a  guaranty  be  made  as. 
to  the  collectibility  of  a  note  by  the  ordinary  process  of  law, 
it  is  usually  necessary  to  prosecute  the  maker  to  judgment. 
This,  however,  is  not  so  when  the  latter  is  insolvent.^  The 
liability  of  a  guarantor  is  fixed  when  the  maker  of  the  note  is 
insolvent  at  maturity.^  A  guarantor  who  guaranties  that  a 
debt  will  be  paid  when  it  becomes  due  will  not  be  liable  if 
the  creditor  fails  to  prosecute  the  principal  with  due  dili- 
gence." The  expression,  "  We  know  them  to  be  good,"  con- 
stitutes a  guaranty  that  a  note  is  good  and  collectible  at 
maturity,  upon  which  a  recovery  may  be  had.^  Permission 
to  use  a  person's  name  as  guaranty  up  to  a  certain  sum 
is  not  in  fact  a  guaranty,  but  confers  power  to  sign  the 
name  of  such  person  to  the  note  for  money  borrowed."  An 
owner  of  a  mortgaged  debt  who  assigns  the  same  to  another,, 
guarantying  payment,  is  released  from  his  guaranty  by  a 
contract  between  the  assignee  and  the  mortgagor  extending, 
the  time  of  payment.^**  A  personal  action  cannot  be  main- 
tained by  an  assignee  of  a  note  and  mortgage  upon  a  guaranty 
of  the  assignor  as  to  the  collectibility  of  the  note,  made  con- 
temporaneously with  the  assignment,  without  resorting  to  the 
mortgage  security.^^  In  an  action  upon  a  contract  of  guaranty 
made  as  to  the  payment  of  money,  the  petition  should  aver 
that  the  defendant  has  not  paid  the  indebtedness  for  the  re- 

1  Wise  V.  Miller,  45  O.  S.  388.  6  id. 

2  Wolf  V.  Brown,  5  O.  S.  804.  7  Craig  v.  Parkis,  40  N.  Y.  181. 

3  Morgan  v.  Boyer,  39  O.  S.  324  8  Bank  v.  Bank,  45  O.  S.  236. 

*  Greene  v.  Dodge,  2  O.  498.     As  to  9  Palmer  v.  Yarrington,  1  O.  S.  25;5. 

consideration,  see  Easter  v.  White,  13  lo  Fithian  v.  Corwin,  17  O.  S.  118. 

O.  S.  219 ;  Kelsey  v.  Hibbs,  13  O.  S.  "  Tiramerman  v.  Howell,  2  O.  C.  C. 

S40.  27. 

5  Stone  V.  Rockefeller,  29  O.  S.  625. 


§  (34i.]  GUARANTY. 


601 


coverv  of  which  the  suit  is  brought,  an  allegation  that  the 
whole  amount  is  not  due  not  being  sufficient.^  It  is  consid- 
ered unnecessary  in  an  action  upon  a  contract  required  by  the 
statutes  of  fraud  to  be  in  writing,  such  as  a  guaranty,  to  al- 
lege in  the  petition  that  it  is  in  writing.  This  is  matter  of 
defense.'  Where  the  guaranty  is  a  conditional  one,  the  plaint- 
iff should  allege  and  prove  that  the  condition  has  happened 
which  creates  the  liability.^  A  statement  of  a  cashier  of  a 
bank,  made  with  reference  to  a  bill,  that  it  is  perfectly  safe, 
amounts  to  a  guaranty  upon  which  an  action  will  lie.*  The 
principle  that  delay  in  enforcing  ]iayment  does  not  release  a 
guarantor,  except  to  the  extent  that  he  is  injured  thereby,. 
does  not  apply  where  the  delay  is  due  to  an  extension  of  time 
without  his  consent.' 

Sec.  644.  Petition  on  guaranty  bond  for  payment  of 
money  by  agent. — 

The' plaintiff  says  it  is  a  corporation  duly  incorporated  under 

the  laws  of  Ohio,'  and  that  on ,  18 — ,  the  defendant, 

C.  H.  (for  a  good  and  sufficient  consideration,  to  wit,  to  en- 
able C.  D.  and  W.  S.  S.  to  obtain  [goods  to  he  sold]  in  car-load 
lots  on  credit  from  the  plaintiff),  executed  and  delivered  to 
plaintiff  her  certain  written  obligation,  and  thereb}'  bound 
herself,  her  heirs,  executors  and  administrators,  to  pay  plaint- 
iff the  sum  of dollars. 

The  condition  of  said  obligation  was,  that  if  the  said  C.  D. 
arftl  AY.  S.  S.,  as  agents  for  the  sale  of  [goods  to  he  sold]  for  the 
l)laintiff,  should  pay  all  money  that  may  be  owing  the  plaint- 
iff as  purchase-money  for  all  [specify  goods]  they  may  pur- 
chase while  acting  as  agents  for  the  plaintiff,  then  the  above 
obligation  was  to  be  void.  Otherwise  the  same  was  to  remain 
in  full  force,  (A  copy  of  said  bond  of  guaranty  is  filed  here- 
with as  an  exhibit.) 

The  plaintiff  avers  that  the  said  C.  D.  and  AV.  S.  S.,  as 
agents  for  the  sale  of  [specify  goods  sold]  for  the  said  com- 
pany, did  not  pay  the  plaintiff  for  all  [sp>ecify  goods]  they  pur 
chased  while  acting  as  agents  for  plaintiff.  But  plaintiff  avers 
that  the  said  S.  and  D.  now  owe  the  plaintiff  for  the  goods  so 
purchased  by  them  a  sum  greatly  in  excess  of  dollars. 

1  Roberts  v.  Treadvvell,  50  Cal.  520.     583;  McCulluch  v.  Tapp,  4  W.  L.  ]\L 

2  Marston  v.  Sweet,  66  N.    Y.  206 ;     575. 

McDonald  v.  Homestead  Assoc,  51  3  Cereghino  v.   Hammer,   60    Cal 

CaL  210 ;  Taylor  v.  Patterson,  5  Ore.  235. 

131 ;  Walsh  v.  Kattenburgh,  8  :\Iinn.  ^  sturges  v.  Bank,  11  O.  S.  153. 

127;    Ecker    v.    McAllister,   45   Md.  a  Jones  v.  Turner,  6  W.  L.  B.  231. 
290;  Mullaly  v.   Holden,    133   Mass. 


6:12  GUARANTY.  [§§  64:5,  646. 

and  the  said  S.  and  D.  and  the  defendant  C.  H.  all  refuse  and 

neo'lect,  upon  demand,  to  pay  the  same,  or  any  part  thereof. 

Wherefore  the  plaintiff  prays  judgment  against  the  said 

G.  H.  for  the  sum  of dollars,  with  interest  from , 

18—. 

Note. —  From  Hess  v.  Brewing  Company,  error  to  circuit  court  of  Bel- 
mont county,  Ohio,  Supreme  Court,  unreported  case.  No.  1624.  Sureties  and 
guarantors  are  never  held  resijousible  beyond  the  clear  and  absolute  terms 
and  meaning  of  their  undertaking.  Morgan  v.  Boyer,  39  O.  S.  324;  Donlej- 
V.  Bank,  40  O.  S.  47  and  51 ;  Brandt  on  Suretyship,  sec.  79.  A  guarantor  is 
bound  only  by  the  precise  words  of  his  contract,  and  other  words  cannot  be 
added  by  construction  or  implication.     Morgan  v.  Boyer,  39  O.  S.  326. 

Demand  and  notice  is  not  necessary  where  the  sureties  guaranty  that  their 
principal  shall  sell  and  account  for  all  goods  placed  in  his  hands  witiiin  a 
stated  period.     Bush  v.  Critcii field,  4  O.  103. 

Sec.  645.  Petition  on  guaranty  to  pay  debt  of  third  per- 
son on  condition  that  time  is  extended  to  the  latter. — 

On   the day  of ,  18 — ,  one  E,  F.  was  indebted  to 

plaintiff  in  the  sum  of  $ ,  which  sura  was  then  due  and 

payable;  that  on  said  day  defendant  requested  plaintiff  to  ex 

tend  the  time  of  payment  of  said  debt  until  the day  of 

,  IS — ,     In  consideration  of  said   extension   of  time  for 

said  pa3'ment  by  plaintiff,  said  defendant  promised  plaintiff  in 

writing  that  he  would  pay  said  sum  in  case  said 

did  not  pay  the  same  on  or  before  the day  of ,  18 — ; 

a  copy  of  which  contract  is  attached  as  an  exhibit. 

That  plaintiff,  relying  upon  said  promise  of  the  defendant, 
did  extend  the  time  for  the  payment  of  said  sum  to  said  E.  F., 

until  the .day  of ,  18 — ,  which  time  has  since  elapsed, 

but  said  E.  F.  has  not  paid  said  sum  nor  any  part  thereof,  of 

all  which  the  defendant  was  duly  notified  on  the day  of 

,  IS — ,  3^et  said  defendant  has  not  paid  said  sum  nor  any 

part  thereof.     Plaintiff  therefore  asks  judgment  against  the 
defendant  for  the  sum  of  S . 

Note. —  The  contract  of  guaranty  becomes  an  evidence  of  indebtedness. 
See  ante,  sec.  57.  Demand  and  notice  is  not  x'equired  in  all  classes  of  guaran- 
ties, as  where  it  is  a  guaranty  undertaken  orii'lually  with  the  principal,  or 
an  absolute  aud  independent  stipulation.  Bash  ford  v.  Shaw,  4  O.  S.  263; 
McKensie  v.  Farrell,  4  Bosw.  192 ;  Dearborn  v.  Sawyer,  59  N.  H.  95 ;  Allen 
v,  Rightmere,  20  Johns.  365;  17  O.  128.  It  is  necessary,  however,  where  the 
agreement  is  to  pay  if  the  principal  does  not  (Greene  v.  Dodge,  2  O.  430); 
and  also  where  the  facts  on  which  the  liability  depends  are  peculiarly 
within  the  knowledge  of  the  guai'antee.  Bashford  v.  Shaw,  supra.  There 
must  be  actual  damage  resulting  therefrom.     Bashford  v.  Shaw,  4  O.  S.  263. 

Sec.  646.  Petition  on  guaranty  to  pay  the  debt  of  an- 
other upon  creditor  agreeing  to  release  lien. — 

That  on  the day  of ,  18 — ,  one  C.  D,  was  indebted 

to  plaintiff  in  the  sum  of  $ ,  which  was  secured  by  a  lien 

upon  certain  goods  of  C.  D.,  then  in  the  possession  of  this 
plaintiff. 


•§§  04T,  048.]  GUARANTY.  603 

That  on  said  day  the  defendant  requested  plaintiff  to  sur- 
render said  goods  to  C.  D;  and  release  his  said  lien  thereon, 
and  in  consideration  of  said  release  of  said  lien  by  ])laintiff, 
defendant  agreed  in  writing  to  pay  plaintiff  the  amount  of 

said  debt  on  the day  of ,  18 — ,  in  case  the  said  C.  D. 

did  not  pay  the  same.  A  copy  of  which  contract  is  attached 
as  an  exhibit. 

That  in  consideration  of  said  promise  of  defendant  the 
plaintiff  then  and  there  gave  up  possession  of  said  goods  to 
said  C.  D.,  and  abandoned  his  lien  thereon. 

That  no  part  of  said  debt  has  been  paid,  and  there  is  now 
due  from  the  defendant  to  the  plaintiff  thereon  the  sum  of 
$ . 

Note. —  As  to  attaching  contract,  see  ante,  sec.  57. 

Sec.  647.  Petition  on  guaranty  for  payment  of  rent. — 

That  on  the day  of ,  18 — ,  one  A.  B.  leased  from 

the  plaintiff  the  following  described  premises,  viz. :  [describe 

premises'],  at  a  yearly  rent  of  $ ,  payable  [designate  time], 

beginning  ou  the  day ,  16 — ,  and   ending  on  the 

day  of ,  18 — . 

That  at  the  time  of  making  said  lease  the  defendant,  C.  D., 
in  consideration  of  leasing  said  premises  to  said  A.  B.,  and  as 
security  for  the  payment  of  the  rent  thereof,  made  and  deliv- 
ered to  plaintiff  an  agreement  in  writing,  by  which  agreement 
he  guarantied  that  the  said  A.  B.  would  punctually  pay  said 
rental  for  said  premises  as  the  same  became  due  (a  copy  of 
which  guaranty  is  filed  herewith  as  an  exhibit),  {A7ite,seG.  57.) 

^hat  said  A.  B.  entered  into  possession  of  said  premises 

under  said  lease  on  the day  of  ■ ,  18 — ,  and  occupied 

the  same  until  the day  of ,  18 — . 

That  the  said  A.  B.  has  failed  to  pay  the  rent  due  thereon 

from  the day  of ,  18 — ,  to  the day  of ,  18 — , 

amounting  to  the  sum  of  $ ,  and  on  the day  of , 

18 — ,  the  plaintiff'  demanded  payment  thereof  from  him,  but 
he  did  not  pay  the  same,  of  which  the  defendant  was  then 
duly  notified. 

That  no  part  thereof  has  been  paid,  and  there  is  now  due 
from  the  defendant  to  the  plaintiff  on  said  guaranty  of  the 
defendant  C.  D.  the  sum  of  $ ,  for  which  he  asks  judg- 
ment. 

8ec.  648.  Defenses  to  actions  on  guaranty. —  In  an  ac- 
tion upon  a  guaranty  for  payment  of  materials  for  another,  a 
general  denial  of  payment  will  be  sufficient  without  other 
allegations.^    Where  a  defense  to  an  action  is  founded  on  an 

iMcShane  Co.  v.  Padian,  20  N.  Y.  S.  679. 


604  GUARANTY.  [§§  64:d,  65a. 

agreement  falling  within  the  statute  of  frauds,  the  answer 
should  aver  that  the  same  was  in  writing.^ 

Sec.  649.  Answer  that  guaranty  was  made  upon  condition 
that  others  should  sign  as  principals, — 

Defendant  says  that  he  executed  the  contract  of  guaranty 
by  indorsing  and  signing  the  same  on  the  bond  mentioned  in 
the  petition. 

That  said  bond  as  then  written  had  the  names  of  R.  F.  and 
Y.  O.  inserted  therein  as  principals;  but  said  Y.  0.  had  not 
yet  signed  the  same. 

That  this  defendant  signed  said  guaranty  at  the  instance 
and  request  of  said  R.  F.,  and  on  the  express  agreement  and 
condition  with  said  R,  F.  that  the  same  should  not  be  binding 
on  this  defendant,  or  delivered  to  the  plaintiff,  until  said  bond 
was  signed  by  said  Y.  O.  as  one  of  the  principals. 

That  said  Y.  O.  never  signed  said  bond ;  and  said  R.  F.,  in 
violation  of  said  agreement,  and  without  this  defendant's 
knowledge  or  consent,  delivered  the  same  with  said  guaranty 
to  the  plaintiff  [who  accepted  and  received  the  same  with  full 
knowledge  of  the  agreement  and  the  condition  on  which  this 
defendant  signed  said  guaranty.] 

Sec.  650,  AnsAver  setting  up  want  of  diligence  against 
principal. — 

That  the  plaintiff  did  not,  at  the  maturity  of  the  claim  sued 

on,  or  at  any  other  time  [or,  until  the day  of ,  IS — ], 

notify  defendant  that  R.  F.  [thepri?icipal  debtor]  had  not  paid 
the  same,  nor  had  defendant  any  knowledge  of  his  default  in 
payment. 

That  at  the  time  said  claim  fell  due,  and  for months 

thereafter,  said  R.  F.  was  the  owner  of dollars'  worth  of 

real  and  personal  property,  situated  in  the  county  of , 

state  of  Ohio,  subject  to  execution,  out  of  which  said  debt 
could  have  been  made;  but  the  plaintiff  did  not  commence  an 
action  against  said  R.  F.  therefor,  nor  take  any  steps  to  col- 
lect the  same  from  him  [until ,  18 — ]. 

That  in  the  meantime  said  R.  F.  became  and  still  is  wholly 
insolvent,  and  if  this  defendant  is  compelled  to  pay  the  said 
bond  he  will  lose  the  same;  whereas  if  plaintiff  had  used  due 
diligence  in  notifying  this  defendant  of  the  default  of  saitl 
R.  F.,  or  in  collecting  the  amount  of  said  bond,  this  defend- 
ant would  not  have   been  compelled  to  pay  or  lose  the  same. 

Wherefore  this  defendant  says  that  by  reason  of  the  negli- 
gence and  want  of  diligence  of  the  plaintiff  he  has  been  dam- 
aged in  an  amount  equal  to  the  plaintiff's  claim,  and  he  de- 
mands judgment  therefor. 

1  Reinheimer  v.  Carter,  31  0.  S.  579. 


CHAPTER  42. 


HABEAS  CORPUS. 


Sec  651.  Who  entitled  to  writ,  and 
questions  raised  thereon. 

652.  The  petition  or  application. 

653.  Form  of  petition  for  habeas 

corpus  —  Setting     forth 
facts. 

654.  Petition  wlaere  applicant  is 

imprisoned    by    an    offi- 
cer—  A  common  form. 

655.  The  use  of  the  writ  in  de- 

termining the  custody  of 
minors. 


Sec.  656.  Petition  by  parent  for  pos- 
session of  his  child. 
Petition  by  father  to  regain 
custody  of  minor  son  in 
United  States  army. 
Who  may  grant  the  writ 
The    writ  —  Code    provis- 
ions. 

660.  Return  or  answer. 

661.  Form  of  return  or  answer. 


657. 


658. 
659. 


Sec.  651.  Wlio  entitled  to  writ,  and  questions  raised 
thereon. —  It  is  said  that  the  right  of  trial  by  jury  and  the 
writ  of  habeas  corpus  stand  as  representatives  of  ideas  as  cer- 
tain and  definite  as  any  other  in  the  whole  range  of  legal 
le^rning.^  Yet  the  extent  of  the  jurisdiction  in  haheas  corpiis, 
as  well  as  the  manner  of  its  exercise,  is  undoubtedly  in  a  large 
measure  within  legislative  control,  and  must  therefore  be  de- 
termined in  the  light  of  the  constitution  and  statutes.^  A  per- 
son unhiwfully  restrained  of  his  liberty,  or  a  person  entitled 
to  the  custody  of  another,  of  which  custody  he  is  unlawfully 
deprived,  may  prosecute  a  writ  of  haheas  corpus  to  inquire 
into  the  cause  of  such  imprisonment,  restraint  or  deprivation.^ 
While  the  writ  is  a  sacred  one  in  the  light  of  the  constitution, 
yet  there  are  many  questions  which  cannot  be  raised  by  re- 
sorting to  it.  The  proceedings  before  a  judge  de  facto  cannot 
be  questioned  in  a  collateral  proceeding  in  haheas  oorpus^  any 
more  than  if  he  were  a  judge  dejure}  Neither  can  a  wrongful 
sentence,  unless  absolutely  void,  be  reviewed  or  reversed  in 
haheas  corpus  proceedings,  but  the  injured  party  must  proceed 


1  Work  V.  State,  2  O.  S.  296.  302. 

2  Kuapp  V.  Thomas,  39  O.  S.  384. 


3  O.  Code,  sec.  5726. 

4  Ex  parte  Strang.  21  O.  S.  610-15. 


606  HABEAS    COKPUS.  [§  ()51.. 

by  petition  in  error.^  And  in  al  cases  where  relief  is  sought 
by  persons  sentenced  for  crime,  the  question  of  jurisdiction  of 
the  court  pronouncing  the  same  determines  the  right  to  apply 
for  a  writ  of  haheas  corpas',  and  whenever  it  appears  that  they 
were  sentenced  by  a  court  of  competent  jurisdiction,  the  same 
cannot  be  reviewed  in  haheas  corpus  proceedings,  but  the 
remedy  in  error  must  be  pursued.^  Nor  can  mere  irregulari- 
ties in  the  sentence  of  a  court  of  competent  jurisdiction  be  re- 
viewed in  habeas  corpus.^  Although  the  writ  may  be  used  to- 
inquire  into  a  question  of  the  jurisdiction  of  a  court  over  a 
particular  offense,  yet  a  court  having  jurisdiction  in  habeas 
corpus^  but  not  over  the  crime,  should  not  allow  the  writ  and 
discharge  the  defendant.*  A  person  cannot  resort  to  haheas 
corpus  proceedings  in  a  national  court  on  the  ground  that  a 
state  court  forced  him  to  trial  without  time  for  preparation:, 
or  an}^  opportunity  to  secure  compulsory  process  or  the  pres- 
ence of  material  witnesses;^  nor  can  the  writ  be  used  for  the 
purpose  of  collaterally  inquiring  into  the  title  of  an  officer;* 
nor  can  a  question  as  to  excessive  punishment  be  determined 
in  haheas  corpus^  as  it  would  be  turning  it  into  a  remedy  for 
the  correction  of  errors;'  nor  of  former  jeopardy,  when  the 
legality  of  the  proceedings  under  which  the  prisoner  is  re- 
strained is  not  called  in  question;^  nor  is  it  the  proper  remedy 
to  try  an  issue  of  autrefois  ac<iuit? 

National  courts  cannot  exercise  appellate  jurisdiction  over 
the  proceedings  of  trial  courts  or  courts  of  a  state,  nor  review 
their  conclusions  of  law  and  findings  of  facts  and  pronounce 
them  erroneous.  They  may  in  their  discretion  put  the  peti- 
tioner to  his  writ  of  error  in  the  highest  court  of  the  state,  or 
summarily  determine  whether  the  party  is  restrained  of  his 

1  Ex  parte  McGehau,  22  O.  S.  443.        » lu  re  McKuii^ht,  30  W.  L.  B.  118: 

2  Ex  parte  Van  Hagan,  25  O.  S.  426 ;     (U.  S.  C.  C,  1893). 

Ex  parte  Wagener,  1  Disn.  10,  14;        6  Miles  v.  Westcott,  28  W.  L.  B.  30 ; 
Madden  v.  Snieltz,  3  O.  0.  C.  168.  15  N.  J.  L.  J.  175.    A  de  facto  officer, 

3  Ex  parte  Shaw,  7  O.  S.  81 ;  State    Ex  parte  Strang,  31  O.  S.  610. 

V.  McClay,  54  N.  W.  Rep.  524  (Neb.,  '  In  re  MacDonald,  33  Pac.  Rep.  IS 

1803).  (Wyo.,  1893). 

4  Ex  parte  Wageuer,  1  Disn.  10;  sSteiner  v.  Nerton,  32  Pac.  Rep. 
Hatch  V.  SU  Clair,  2  O.  C.  C.  163;  1063  (Wash.,  1893). 

Butterlield  v.  O'Connor,  2  W.  L.  G.        »  Pituer  v.  State,  44  Tex.  578 ;  State 
185 ;  Ex  parte  McGehan,  23  O.  S.  442.     v.  Klock,  13  So.  Rep.  307  (La.,  1893). 


§  651.]  HABEAS    COKPUS.  607 

liberty  in  violation  of  the  constitution  of  the  United  States. 
But  they  should  not  entertain  jurisdiction  where  the  questions 
raised  are  precisely  the  same  as  those  raised  in  a  state  court 
of  last  resort.^  This  seems  the  better  rule  even  thoujrh  con- 
stitutional  questions  under  the  United  States  constitution 
were  raised  in  both  courts;  otherwise  a  dangerous  conflict 
would  arise  between  a  state  court  of  last  resort  and  an  in- 
ferior federal  court,  and  the  proceeding  could  be  used  by  the 
latter  court  to  collaterally  impeach  the  state  court,  when 
error  from  the  state  court  would  seem  to  be  the  appropriate 
remedy.  The  illegality  of  a  second  sentence  cannot  be  in- 
quired into  v/hile  the  person  is  lield  under  a  valid  sentence 
and  commitment.^  As  a  probate  judge  has  no  authority  to 
imprison  a  person  who  refuses  to  deliver  property  to  a  receiver 
appointed  by  him,  as  for  contempt,  one  so  imprisoned  may 
be  released  by  habeas  corpus  proceedings.*  While  the  writ 
cannot  be  used  to  review  and  correct  errors  of  courts  acting 
within  their  powers,  it  is  the  proper  remedy  to  release  one 
from  imprisonment  under  a  process  made  by  a  court  without 
jurisdiction.^  It  is  said  that  courts  have  jurisdiction  to  hear 
and  determine  all  questions  of  imprisonment  without  regard 
to  the  power  wliich  imposes  it,  or  the  process  by  which  the 
prisoner  is  held.*  The  detention  of  an  inmate  by  the  trustees 
of  a  reform  school  may  be  inquired  into  by  habeas  corpus} 
A  person  surrendered  by  another  state  upon  extradition  pro- 
ceedings, who  has  been  arrested  while  held  in  custodj'  there- 
under for  a  crime  other  than  for  which  he  was  extradited, 
may  be  released  by  habeas  corpus^  as  he  must  be  given  a  rea- 
sonable time  to  leave  the  state.^  Eraplovees  of  a  corporation 
who  have  been  arrested  for  contempt  in  violating  an  order 
against  a   corporation   may   be   released  on  habeas   corpus.^ 

1  In  re  King,  51  Fed.  Rep.  434;  Ex    want  of  jurisdiction  of  court.     In  re 
parte  Royall,  117   U.  S.  241;  In   re    George,  5  O.  C.  C.  207. 

Duncan,  139  U.  S.  449 ;  In  re  Wood,        &  In  re  Collier,  6  O.  S.  55. 

140  U.  S.  289.  6  In  re  Kruse,  2   C.  S.   C.   E.    71 ; 

2  Ex  parte  Ryan,  17  Nev.  139 ;  28    Prescott  v.  State,  19  O.  S.  184. 

Pac.  Rep.  1040  (1892 j.  7  Ex  parte  McKnight,  48  O.  S.  588; 

3  White  V.  Gates,  42  O.  S.  109.  State  v.   Vanderpool,  39  O.  S.  273; 

4  Ex  parte  McKnight,  48  O.  S.  588 ;  United  States  v.  Rauscher,  119  U.  S. 
State  V,   Hamilton,   3  O.   C.   C.    10.  407. 

Evidence  may  be  introduced  to  prove        s  in  re  George,  5  O.  C,  C.  207. 


608  HABEAS   COKPUS,  [§  652. 

The  writ  being  in  the  nature  of  a  coUateral  attack  upon  a 
judgment,  the  inquiry  must  be  limited  to  the  question  of  ju- 
risdiction of  the  court.^  A  person  ckxiniing  that  he  is  re- 
strained under  a  sentence  of  imprisonment  pronounced  under 
an  unconstitutional  statute  may  resort  to  habeas  corpus  pro- 
ceedings to  test  the  constitutionality  of  the  law.'^  A  prisoner 
confined  under  an  invalid  municipal  ordinance  which  is  an 
absolute  nullity  may  be  released  by  haheas  corpus}  Where 
an  officer  refuses  to  bring  a  person  before  a  commissioner  of 
insolvents  he  should  pursue  the  remedy  of  mandamus  rather 
than  haheas  corpus}  An  unconditional  pardon  which  has 
been  delivered  cannot  be  impeached  in  habeas  corpus  proceed- 
ings for  the  purpose  of  showing  that  the  same  was  procured 
by  fraud.* 

Sec.  652.  The  petition  or  application. —  Although  2^hdbeas 
<iorpus  proceeding  is  of  a  different  nature  from  other  ac- 
tions, it  is  generally  treated  as  a  civil  action.^  The  plead- 
ings are  virtually  the  same  as  in  other  actions.  The  applica- 
tion must  be  made  by  petition,  duly  signed  and  verified  by 
the  party  seeking  relief,  or  by  some  person  for  him.  It  must 
state  that  the  person  in  whose  behalf  the  application  is  made 
is  imprisoned  or  restrained  of  his  liberty,  and  the  officer  or 
name  of  the  person  by  whom  he  is  confined  or  restrained;  or, 
if  both  are  unknown  or  uncertain,  he  may  be  described  by  an 
assumed  appellation ;  and  the  person  who  is  served  with  the 
writ  is  to  be  deemed  the  person  intended.  The  place  where  the 
person  is  so  imprisoned  or  restrained,  if  known,  must  be  stated, 
and  a  copy  of  the  commitment  or  cause  of  detention  must  be 
exhibited  if  it  can  be  procured  without  impairing  the  efficiency 
of  the  remedy ;  or,  if  the  imprisonment  or  detention  is  with- 
out any  legal  authority,  that  fact  should  appear.^  A  demur- 
rer may  be  filed  to  the  petition  or  to  the  return  or  answer, 
and  issues  of  law  or  fact  raised  by  the  pleadings  are  deter- 
mined as  in  other  cases.^    A  hearing  will  not  be  defeated  by 

1  In  re  King,  51  Fed.  Rep.  434.  ^  Amnion  v.  Johnson,  3  O.  C.  C 

2  In  re  Kline,  6  O.  C.  C.  215;  Ex    263. 

parte  Siebold,  100  U.  S.  176.  ^O.  Code,  sec.  5728. 

3  Ex  parte  Clamp,  16  W.  L.  B.  229.  SAinmon  v.  Johnson,  3  O.  C.  C. 

4  Ex  parte  Scott,  19  O.  S.  581.  263. 

5  Knapp  V.  Thomas,  39  O.  S.  377. 


§  653.]  HABEAS   CORPUS.  609 

the  failure  of  the  officer  to  find  the  body  of  the  person  who  is 
sought.^  It  has  been  suggested  in  an  intermediate  report 
that,  where  the  custody  is  not  controverted,  the  applica- 
tion or  petition  may  merely  declare  in  the  language  of  the 
statute  that  a  person  is  unlawfully  restrained  of  his  liberty, 
or  is  illegally  restrained  and  without  legal  authority,  by  a 
certain  person  named  ;2  and  although  the  statute  provides 
that  the  petition  shall  state  that  the  person  in  whose  behalf 
the  application  is  made  is  restrained  of  his  liberty,  it  is  essen- 
tial that  all  the  facts  constituting  the  illegal  restraint  should 
be  fully  set  forth.  It  is  not  sufficient  to  merely  aver  that  the 
petitioner  is  illegally  restrained  of  his  libert}'^,  as  that  is  a  legal 
conclusion.  It  must  clearly  appear  in  what  the  illegal  re- 
straint consists.  The  facts  constituting  the  unlawful  restraint 
should  be  plainly  and  concisely  set  forth  in  accordance  with 
the  rules  for  stating  a  civil  action.*  The  petition  should  also 
state  the  place  of  confinement.* 

Sec.  653.  Form  of  petition  for  liabeas  corpus  —  Setting 
forth  facts. — 

Your  petitioner,  C.  D.,  respectfully  states  that  on  the  

day  of ,  18 — ,  he  was  arrested  by  A.  B.,  who  is  sheriff  of 

the  county  of and  state  of  Ohio,  upon  a  certain  warrant 

of  arrest  issued  to  said  A.  B.  by  the  clerk  of  the  court 

of ■  county,  Ohio,  in  an  action  wherein  the  said  E.  F.  was 

plaintiff  and  your  petitioner  was  defendant ;  that  by  virtue 
of  said  order  of  arrest  your  petitioner  is  now  restrained  of 

his  liberty  and  is  imprisoned  in  the county  jail  by  said 

sheriff. 

That  the  pretended  cause  of  restraint  and  imprisonment  is 

1  Ammon  v.  Johnson,  3  O.  C.  C.  268.  followed.     Conclusions  of  law  should 

2  la  re  Curd,  11  W.  L.  B.  186.  See  be  avoided.  The  petition  should 
Ex  parte  Champion,  52  Ala.  311.  show  in  what  the  illegality  of  the 

3  State  V.  Ensign,  13  Neb.  250;  Ex  imprisonment  consists,  and  this 
parte  Nye,  8  Kan.  99.  See,  also.  In  should  be  done  by  stating  the  facts 
re  Snyder,  17  Kan.  542;  In  re  Clep-  showing  it."  Page  179:  "A  petition 
per,  26  111.  532.  Volume  9  of  the  for  the  transfer  of  children,  being 
Am.  and  Eng.  Encycloitedia  of  Law,  addressed  to  the  sound  discretion  of 
page  178,  in  treating  of  a  petition  in  the  court,  must  contain  a  full  dis- 
habeas  corpus,  states  that :  "  The  ap-  closure  of  all  the  essential  facts  be- 
plication  for  a  writ  of  habeas  corpus  fore  a  writ  of  habeas  corpus  will  be 
should  put  before  the  court  or  judge  granted  upon  it." 

facts  enough  to  permit  an  intelligent        ^  Peui)le  v.  Rosenthal,  59  How.  Pr. 
judgment  to  be  formed  of  the  case.     287. 
The  rules  of  good  pleading  should  be 
39 


610  HABEAS  CORPUS.  [§§  654,  855. 

no  other  than  that  above  given,  a  copy  of  which  warrant  is 
exhibited  herewith. 

That  the  alleo-ations  set  forth  in  the  affidavit  of  said  A.  B., 
upon  which  said  order  of  arrest  was  issued,  are  untrue,  in  this: 
that  the  petitioner,  at  the  time  said  affidavit  was  filed  and 
said  order  of  arrest  issued,  was  not  about  to  leave  this  state, 
nor  has  he  been  at  any  time  since  then,  nor  is  he  now,  about  to 
leave  this  state,  taking  with  hira  property  subject  to  execu- 
tion, or  money  or  effects  which  should  have  been  or  should 
now  be  applied  to  the  payment  of  said  E.  F.'s  claim,  with 
intent  to  defraud  said  E.  F. 

Wherefore  your  petitioner  asks  that  a  writ  of  habeas  corpus 
may  be  granted,  and  that  he  may  be  discharged  from  such 
unlawful  restraint  and  im|)risonment. 

[  Yerljicatwn  as  in  ordinary  Gases?\^ 

Sec.  654.  Petition  where  applicant  is  imprisoned  by  an 
officer — A  common  form. — 

Your  petitioner,  J.  F.  S.,  respectfully  represents  that  he  is 
unlawfully  restrained  of  his  liberty  by  J.  E,  M.,  chief  of  police 
of  the  city  of  C,  Ohio,  at  the  city  prison.  The  pretended 
cause  of  the  imprisonment  is  as  follows,  and  shown  by  copy 
of  the  commitment  hereto  attached,  marked  "Exhibit  A." 

Wherefore  your  petitioner  asks  that  a  writ  oihahcas  corpus 
may  be  granted  and  he  may  be  discharged  from  such  unlaw- 
ful imprisonment. 

Note. —  This  form  is  taken  from  In  re  Sipe,  an  unreported  case  in  the 
supreme  court,  and  is  an  exact  copy  of  form  in  1  Bates'  Pldg.,  p.  466,  and 
in  Maxwell's  Code  Pldg.,  p.  672.  It  is  mserted  here  because  of  the  fact  that 
it  has  been  commonly  used,  and  is  the  form  used  by  the  authors  mentioned 
as  well  as  by  practitioners  following  the  same,  and  is  therefore  entitled  to 
consideration,  as  well  as  for  ihe  purpose  of  making  a  comparison  and  more 
fully  illustrating  the  rules  stated  in  ante,  section  652.  which  are  believed  to 
be  correct.  The  writer,  however,  does  not  believe  it  to  be  a  correct  form, 
for  reasons  stated  in  a  preceding  section,  652.  It  is  subject  to  a  motion  to 
make  definite  and  certain  by  setting  forth  the  facts  constituting  the  unlaw- 
ful imprisonment  or  restraint,  and  Ibecause  it  is  the  statement  of  a  mere  legal 
conclusion,  accordmg  to  the  authorities  cited  in  ante,  section  652.  This  view 
has  been  taken  by  a  trial  court  upon  a  motion  of  this  character  in  the  case 
of  In  re  Barnes,  30  W.  L.  B.  164,  The  proper  form  is  the  one  in  section  653. 
See  sec.  655,  post. 

Sec.  655.  The  use  of  the  writ  in  determining  custody  of 
minors. —  The  writ  of  haheas  corpus  is  the  proper  remedy  for 
the  ascertainment  and  enforcement  of  the  legal  or  proper  cus- 
tody of  an  infant,  and  is  of  an  equitable  nature,  being  almost 
entirely  discretionary  with  the  court.^  And  in  a  case  brought 
by  the  mother  against  the  father  for  the  custody  of  an  infant, 
other  things  being  equal,  it  will   be  awarded  to  the  mother.- 

1  Green  v.  Campbell,  35  W.  Va.  698 ;  2  state  ex  rel.  v.  Niles,  35  "W.  L.  B. 
&  C,  14  S.  E.  Rep.  212.  327. 


m 


§  655.]  HABEAS   CORPUS.  611 

A  writ  will  not  only  be  granted  when  the  place  of  the  de- 
tention is  within  the  jurisdiction,  but  its  effect  cannot  be 
avoided  by  the  removal  of  a  party  detained.^  Where  the  cus- 
tody of  a  minor  has  been  awarded  to  one  of  the  parents  in  a 
divorce  proceeding,  no  inferior  court  can  legally  interfere  by 
habeas  corpus  with  the  custody  so  decreed.-  The  jurisdiction  of 
the  trial  court  in  such  a  case  is  a  continuing  one,  and  it  may 
modify  any  decree  made  with  respect  to  the  custody  of  a 
minor  as  changed  conditions  may  demand.'  A  person  who 
has  been  awarded  the  custody  of  a  minor  child  by  a  decree  of 
one  state  cannot  go  into  another  state  and  recover  the  cus- 
tody of  such  child  in  reliance  upon  the  judgment  of  the  sister 
state,  when  the  conditions  have  so  far  changed  that  the  best 
interests  of  the  minor  require  that  the  judguient  of  the  sister 
state  should  be  disregarded.  It  is  the  duty  of  the  court  to 
take  testimony  and  determine  the  question  anew,  when  the 
pleadings  show  a  changed  condition  of  affairs.'*  A  second  ap- 
plication for  a  writ  of  habeas  corpus  for  the  custody  of  a  minor 
child  cannot  be  made  when  the  controversy  relates  to  the 
same  matter  and  is  upon  the  same  state  of  facts.  Under  such 
circumstances  the  doctrine  of  res  adjudicata  is  applicable,  as 
in  other  cases.'  On  the  other  hand,  the  doctrine  of  res  adju- 
dicata cannot  be  applied  wben  the  facts  and  circumstances 
have  so  far  changed  that  the  best  interest  of  the  minor  de- 
mands that  a  different  order  be  made ;  '^  and  under  the  clause  of 
the  constitution  providing  that  full  faith  and  credit  shall  be 
given  in  each  state  to  the  judicial  proceedings  of  every  other 

1  Ex  parte  Everts,  2  Disn.  33.  5  state  v.  Bechdel,  87   Minn.   360 ; 

2  Hoffman  v.  Hoffman,  15  O.  S.  427.  Mercien  v.  People,  25  Wend.  64 ;  s.  C, 

3  Rogers  v.  Rogers.  31  W.  L.  B.  67;  35  Am.  Dec.  653;  People  v.  Brady, 
51  O.  S.  1;  Hoffman  v.  Hoffman,  64  N.  Y.  182;  Church  on  Habeas 
supra.  Corpus,  sec.  387 ;  Freeman  on  Judg- 

4  In  re  Barnes,  80  W.  L.  B.  164.  ments,  sec.  324 ;  Brooke  v.  Dogan, 
See  Cunningham  v.  Barnes  (W.  Va.),  112  Ind.  183;  Dubois  v.  Johnson,  96 
17  S.  E.  Rep.  308.     The  best  interest  Ind.  6. 

of  the  child  is  always  the  criterion,  6  Hurd  on  Habeas  Corpus,  pp.  462, 

notwithstanding  a  judgment  or  de-  516;  In  re  Bort,  25  Kan.  308;  Thoru- 

cree  has  been  made  in  another  state,  dyke   v.  Rice.  24  Law   Reporter,  1 9 

Freemanon  Judgments, sec.  324;  Inre  (Sup.  Ct.  Mass.  1860,  Bigelow,  J.j;  In 

Bort,  25  Kan.  308 ;  Thorndyke  v.  Rice,  re  Barnes,  30  W.  L.  B.  164. 
24  Law  Reporter,  19  (Mass.,   1860); 
People  V.  Allen,  105  N.  Y.  628. 


612  HABEAS  CORPUS.  [§§  656,  657. 

state,  the  same  doctrine  of  res  adjudicata  will  be  applied  to  a 
decree  of  a  sister  state  as  to  tiie  custody  of  a  minor  with  re- 
spect to  the  same  subject-matter  and  the  same  facts.  But 
whenever  this  doctrine  is  sought  to  be  applied  in  the  case  of 
a  domestic  or  foreign  decree,  although  it  mav  be  binding  be- 
tween the  parties,  it  will  not  preclude  the  court  from  consid- 
ering the  best  interest  of  the  child;  and  hence  it  will  hear  the 
evidence  and  make  such  order  as  the  interest  of  the  minor 
seems  to  require.^ 

Sec.  656.  Petition  by  parent  for  possession  of  cliild.— 
Your  petitioner  respectfully  represents  that  A.   B.  is  his 

minor  child  of  the  age  of years,  to  whose  possession  he 

is  lawfully  entitled.  That  C.  D.  has  seized  the  body  of  said 
child  and  now  restrains  him  of  his  liberty  and  deprives  your 
petitioner  of  the  possession  of  him  by  forcibly  confining  him 

in  his,  the  said  C.  T>.%  dwelling-house,  situated  on  the 

street  in  the  city  of ,  county  of ,  state  of  Ohio.    That 

said  restraint  is  wholly  unlawful  and  \yithout  right  in  this, 
to  wit :  [Here  state  facts  neoessary  to  disclose  the  urdavjful  re- 
straint ?\ 

Wherefore  your  petitioner  prays  for  a  writ  of  habeas  corpus^ 
and  that  the  said  minor  child  be  ordered  delivered  up  to  him. 

Note. —  See  ante,  sec.  653. 

Sec.  657.  Petition  by  father  to  regain  custody  of  minor 
son  in  United  States  army. — 

Your  petitioner  respectfully  represents  that  he  is  a  resident 
of  the  town  of  W.,  in  the  county  of  N.  and  state  of  — ^;  that 

he  has  a  minor  son  of  the  age  of  years,  named  J.  M., 

who  enlisted  in  the  military  service  of  the  United  States  on 

or  about  the  day  of ,  18—,  for  the  term  of  — — 

years,  by ,  having  his  office  in  the  place  of  enlist- 
ment at ,  in  the  county  of  S.  and  state  aforesaid,  with- 
out the  knowledge  or  consent  of  your  petitioner,  without 
whose  consent  he  avers  and  believes  said  enlistment  was  and 
is  void ;  and  your  petitioner  further  represents  that  his  said 

minor  son  is  deprived  and  restrained  of  his  liberty  at -,  by 

the  said ,  or  by  officers  or  persons  under  his  charge 

and  direction;  that  your  petitioner  has  represented  to  the 

said that  the  said  J.  M.  is  a  minor  and  that  your 

petitioner  refuses  to  give  his  consent  to  the  enlistment;  but 

lln  re  Barnes,  31  W.  L.  B.  164;  In  any  case  will  consider  the  choice  of 

re  Bolt,  25  Kau.  308 ;  Thorndyke  v.  the  cliild.     Clark  v.  Boyer,  33  O.  S. 

Rice,  24  Law  Reporter,  19;  People  v.  399. 
Allen,  105  N.  Y.  628.     The  court  in 


§§  658,  659.]  HABEAS  CORPUS.  613 

that  the  said refuses  to  release  the  said  J.  M.  and 

is  about  sending  hira  out  of  the  jurisdiction  of  this  court  for 
the  purpose  of  compelling  him  to  perform  military  services. 
Wherefore  your  petitioner  respectfully  prays  the  court  to 
grant  a  writ  of  liobeas  corpus  to  be  directed  to ,  hav- 
ing charge  of  the  said  J.  M.,  commanding  him  and  them  to 
bring  the  said  J.  M.  before  this  court  to  do,  submit  to  and 
receive  what  the  laws  may  require. 

Note. —  The  father  may  inquire  into  the  illegality  of  the  detention  of 
his  minor  son  by  habeas  corpus.  McConologiie's  Case,  107  Mass.  154.  See 
State  V.   Brearly,  2  Southard,  555. 

Sec.  658.  Who  may  grant  the  writ. —  The  writ  may  be 
granted  by  the  supreme  court,  circuit  court,  common  pleas 
court,  probate  court,  or  by  a  judge  of  either.'  In  view  of  the 
light  in  which  the  constitution  regards  the  writ,  and  of  the 
fact  that  the  statutes  have  conferred  original  jurisdiction  in 
habeas  corjpus  upon  all  courts  of  record,  it  would  seem  that  it 
ought  to  be  regarded  as  a  matter  of  right  to  have  the  writ 
issued  in  any  court.  Tet  the  supreme  court  early  a^lopted 
the  rule  that  it  w^as  within  its  discretion  whether  or  not  it 
would  put  aside  its  regular  business  and  entertain  applications 
for  the  writ,  unless  it  be  in  very  urgent  cases,  or  under  peculiar 
circumstances,-  or  when  it  seemed  necessary  to  settle  some 
important  question." 

*Sec.  659,  The  writ  —  Code  provisions. —  The  writ  should 
not  be  issued  if  it  appears  from  the  application  that  the  per- 
son is  under  restraint  by  virtue  of  a  judgment  having  juris- 
diction.* The  clerk  shall  issue  the  writ  forthwith,  or  in  case 
of  emergency  the  judge  may  issue  it  himself  and  depute  any 
oflBcer  or  person  to  serve  it.^  If  the  person  be  detained  by 
imprisonment  by  an  officer,  the  writ  should  be  directed  to 
him,  commanding  him  to  have  the  body  before  the  court  at 
the  time  and  place  therein  named.^  In  case  of  confinement, 
imprisonment  or  detention  by  a  person  not  an  officer,  the 
writ  shall  be  in  the  form  following: 

The  State  or  Ohio,  ) 

County.        (  ^^• 

To  the  Sheriffs  of  our  several  counties,  Greeting: 

We  command  you  that  the  body  of ,  of ,  by 

J  O.  Code,  sec.  5727.  ■«  O.  Code,  sec.  5730. 

2  Ex  parte  Shaw.  7  O.  S.  81.  »  O.  Code,  sec.  5731. 

3  Ex  parte  Shean,  25  O.  S.  440.  6  O.  Code,  sec.  5733. 


614  HABEAS   CORPUS.  [§  660. 

of ,  imprisoned  and  restrained  of  his  liberty, 


as  it  is  said,  you  take  and   have  before ,  a  judge 

of  our court,  or,  in  case  of  his  absence  or  disability,  be- 
fore some  other  judge  of  tlie  same  court,  at ,  forthwith 

to  do  and  receive  what  our  said  judge  shall  then  and  there 

consider concerning  him  in  his  behalf;  and  summon  the 

said then  and  there  to  appear  before  our  said  judge,  to 

show  the  cause  of  the  taking  and  detention  of  said . 

Witness, at ,  this day  of ,  in  the  vear . 


The  officer  must  make  a  due  return  of  the  writ,  together 
with  the  cause  of  the  caption  and  detention  of  the  person, 
accordino-  to  the  command  thereof.^  When  the  writ  is  issued 
by  a  court  in  session,  if  the  court  is  adjouri:\ed  when  the  same 
is  returned,  it  may  come  before  any  judge  of  the  same  court.^ 
A  court  having  obtained  jurisdiction  of  a  child  in  one  county 
in  adverse  proceedings  involving  the  custody  of  a  child  may 
send  its  process  in  any  county  in  the  state  in  which  such  child 
has  been  taken,^  The  writ  may  be  served  in  any  county  by 
the  sheriff  of  the  same  or  any  other  county  or  by  a  person 
appointed.* 

Sec.  660.  The  return  or  answer. —  The  defendant  is  re- 
quired to  make  what  is  styled  a  return,  which  is  in  fact  treated 
as  an  answer.^  When  the  person  to  be  produced  is  imprisoned 
or  restrained  by  an  officer,  the  person  who  makes  the  return 
shall  state  therein,  and  in  other  cases  the  person  in  whose  cus- 
tody the  prisoner  is  found  shall  state,  in  writing,  to  the  court 
or  judge  before  whom  the  writ  is  returnable,  plainly  and  un- 
equivocally: 1.  Whether  he  has  or  has  not  the  party  in  his 
custody  or  power,  or  under  restraint.  2.  If  he  has  the  party 
in  his  custody  or  power,  or  under  restraint,  he  shall  set  forth 
at  lar^e  the  authority  and  the  true  and  whole  cause  of  such 
imprisonment  and  restraint,  with  a  copy  of  the  writ,  warrant 
or  other  process,  if  any,  upon  which  the  party  is  detained. 
3.  If  he  has  had  the  party  in  his  custody  or  power  or  under 
restramt,  and  has  transferred  such  custody  or  restraint  to  an- 
other, he  shall  state  particularly  to  whom,  at  what  time,  for 
what  cause  and  by  what  authority  such  transfer  was  made.' 

1  O.  Code,  sec.  5736.  263 ;  Knapp  v.  Thomas,  39  0.  S.  378 ; 

2  O.  Code,  sec.  5737.  Church's  Habeas  Corpus,  sec.  120; 
» In  re  Talbott,  9  W.  L.  B.  271.  Hurd  on  Habeas  Corpus  (2d  ed.),  235. 
*  O.  Code,  sec.  5735.  «  O.  Code,  sec  5738. 

5  Amnion  v.   Johnson,  3  O.  C.  C. 


§  661.]  HABEAS    CORPUS.  615 

The  return  or  answer  should  be  signed  by  the  oflBcer  and 
sworn  to  unless  he  is  a  public  officer  and  makes  the  return  in 
his  official  capacity.^  It  has  been  said  in  Xew  York  that  the 
better  opinion  is  that  a  return  to  a  writ  of  haheas  corpus  could 
not  be  controverted.  But  upon  the  return,  which  is  really  an 
answer,  the  petitioner  is  allowed  to  deny  material  facts  set 
forth  in  the  writ,  and  make  new  allegations  in  support  of  the 
application.-  Indeed  it  has  been  held  that  the  plaintiff,  in- 
stead of  making  a  complete  statement  of  the  facts  in  his  ap- 
plication, may  make  it  in  reply  to  the  return.^  This  doctrine, 
however,  is  not  a  commendable  one.*  The  relator  may  deny 
the  return  and  allege  other  material  facts.^  The  return  should 
show  the  cause  of  commitment  as  specifically  and  certainly  to 
the  judges  before  whom  it  is  returned  as  it  did  to  the  court 
or  person  authorized  to  commit.^ 

Sec.  661.  Return  aud  answer  of  respondent. — 

This  respondent,  A.  L.  C,  producing  the  body  of  T.  C.  in 
obedience  to  the  writ  of  haheas  corpus  hereinbefore  issued, 
says  thai  he  is  the  father  of  the  said  T.  C,  a  minor  of  the  age 
of  ten  years,  and  as  such  father  entitled  to  the  care  and  cus- 
tody thereof.     {Then  give  full  statement  of  facts. '\ 

Kespondent  denies  that  the  said  T.  C.  is  unlawfully  re- 
strained of  his  liberty,  and  therefore  prays  that  this  court  will 
order  his  said  child,  T.  C,  to  be  remanded  to  his  care,  custody 
and  control,  and  that  the  said  writ  herein  issued  may  be 
quashed,  and  that  the  petition  herein  may  be  dismissed  and 
the  costs  of  this  proceeding  adjudged  against  the  petitioner, 
and  for  such  further  relief  as  is  proper. 

1 0.  Code,  sec.  5739.  5  Iq  re  Hardigau.  57  Vt.  100. 

2  People  V.  Chegary,  18  Wend.  637.  eg  Am.  &  Eng.  Eucy.  of  Law,  p.  189, 

3  Slavey  v.  Seymour,  3  Cliff.  439.  aud  cases  cited. 
^  Ante,  sec.  653. 


CHAPTER  43. 


HUSBAND  AND  WIFE. 


Sec.  662.  Relative  duties,  rights  and 
liabilities  of  husband  and 
wife. 

663.  Petition    for    recovery    of 

value  of  necessaries  fur- 
nished wife. 

664.  Answer    that    goods     fur- 

nished wife  were  not  nec- 
essaries. 


Sec.  655.  Petition    by    wife    against 
husband  for  support. 

666.  Petition  by  husband  against 

wife  for  support. 

667.  Action  by  wife  for  aliena- 

tion of  husband's  affec- 
tions. 


Sec.  662.  Relative  duties,  rights  and  liabilities  of  lius- 
baud  and  wife. —  The  changes  made  by  statute  in  Ohio  are 
so  sweeping  that  it  becomes  impracticable  here  to  give  any 
attention  to  former  decisions.  Husband  and  wife  may  now 
enter  into  anv  enffao^ement  or  transaction  with  each  other,  or 
with  any  other  person,  which  either  might  do  if  unmarried. 
The  same  rule,  however,  which  controls  the  actions  or  con- 
tracts of  persons  occupying  confidential  relations  with  each 
other  will  apply  to  such  transactions.^'  If  one  of  them  exerts 
influence  which  arises  from  the  married  relation  to  obtain 
advantage  pver  the  other,  it  is  a  fraud  for  which  equity  will 
grant  relief.'^  With  the  rules  of  pleading  heretofore  existing 
with  respect  to  actions  to  charge  the  separate  estate  of  a  mar- 
ried woman  we  have  nothing  to  do.  Under  existing  laws,' 
the  same  obligations  are  imposed  upon  the  husband  as  to  sup- 
porting his  wife  and  children  as  formerly.  He  must  support 
his  wife  and  children  out  of  his  property  or  by  his  labor,  and 
suit  may  be  maintained  against  him  therefor.  If  he  is  un- 
able to  do  so  the  wife  must  assist  him  so  far  as  she  is  able. 
And  where  the  wife  is  able  to  support  a  husband  who  is  at  no 
fault,  but  unable  to  support  himself  on  account  of  infirmity, 
it  has  been  held  that  he  mav  maintain  an  action  against  his  wife 


iR  S.,  sec.  3112;  Crum  v.  Sawyer, 
132  111.  443. 


-  Jackson  v.  Jackson,  94  Cal.  446. 
3  R  S.,  sec.  3109  et  seq. 


§  663.]  HUSBAND    AND    W"FE.  617 

to  subject  her  property  to  the  payment  of  such  a  sum  as  may 
be  found  necessary  for  the  husband's  support.^  On  the  other 
hand,  a  wife  may  maintain  an  independent  action  against  her 
husband  for  support  without  regard  to  the  question  of  di- 
vorce.^ The  code  also  gives  the  right  to  the  wife  to  file  a 
petition  to  prevent  her  husband  from  wasting  or  squandering 
property,  or  for  fraudulently  converting  the  lame  to  his  own 
use,  or  from  placing  it  beyond  her  use.  The  court  may  en- 
join him  from  interfering  with  it,  and  appoint  a  receiver  to 
manage  the  same  for  the  benefit  of  the  wife.''  The  wife  may 
also  sue  her  husband,  or  a  firm  of  which  he  is  a  meuiber,  and 
he  may  confess  judgment  to  her.*  Suit  ma}'^  now  be  main- 
tained by  and  against  a  married  woman  as  though  she 
were  unmarried.*^  She  may  recover  for  personal  earnings 
from  another,  but  not  for  services  performed  for  her  husband 
in  and  about  his  business.®  Husband  and  wife  may  make  any 
contract  with  each  other,^  and  may  therefore  enter  into  part- 
nership.^ Although  the  statutes  have  so  changed  the  law  that 
husband  and  wife  may  contract  with  each  other,  the  husband 
is  still  the  head  of  the  family,  and  the  expenses  of  the  famil}'- 
and  for  the  education  of  the  children  are  chargeable  upon  the 
property  of  both  or  either  of  them  in  favor  of  creditors.^ 
When  husband  and  wife  are  sued  the  wife  may  defend  in  her 
own  right;  and  if  the  husband  neglects  to  defend  she  may 
also  defend  for  his  right.^^  In  such  cases  a  separate  answer  by 
the  wife  may  be  a  complete  defense  as  to  both.'^ 

Sec.  663.  Petition  for  recovery  of  value  of  necessaries 
furnished  wife. — 

\_Caption.'\ 

Plain tifif  says  that  between  the day  of ,  18 — ,  and 

the day  of ,  18 — ,  he  furnished  to  A.  B.,  the  wife  of 

the  defendant,  at  her  request,  certain  necessaries,  and  that 
there  is  due  from  said  defendant  as  the  husband  of  the  said 

1  Hickle  V.  Hickle,  6  O.  C.  C.  490,  «  Switzer  v.  Kee,  146  111.  577. 
now  pending  in  supreme  court.  "  Crum  v.  Sawyer,  132  111.  443. 

2  Earle  v.  Earle,  27  Neb.  277 ;  Beuter  8  Dressel  v.  Lonsdale,  46  111.  App. 
V.  Beuter  (S.  D.,  1890),  45  N.  W.  Rep.  454. 

208.  9  Tyler  v.  Sanborn,  128  III  136. 

3  O.  Code,  sec.  5705.  lo  R.  S..  sec.  4997. 

4Freiler  v.  Kear,  22  W.  L.  B.  326.       "Lowes  t.  Redgate,  42  O.  S.  329. 
5  Card  Fabrique  Co.  v.  Stanage,  29    Seean^e,  sec.  11. 
W.  L.  B.  415;  51  O.  S. — . 


618  HUSBAND    AND    -^'IFE.  [§§  664:,  665. 

A.  B.  on  an  account  for  the  same  the  sura  of  $ ,  with  in- 
terest from  the day  of ,  13 — ,  a  copy  of  which  is  as 

follows,  to  wit:  [Copy  of  account.] 

Plaintiff  further  states  that  the  said  goods  so  furnished  by 
him  to  the  said  A.  B.  were  necessary  for  her  maintenance  and 
support,  and  that  the  same  were  suitable  for  her  in  her  station 

and  walk  of  life;  that  on  the day  of ,  18 — ,  and  at 

divers  other  times  he  demanded  payment  therefor  of  said  de- 
fendant, which  was  by  him  refused! 

Wherefore  plaintiff  asks  judgment  against  said  defendant 

for  said  sum  of  S ,  with  interest  from  the day  of , 

18-. 

Note.— R.  S.,  sec.  3110.  See  27  C.  L.  J.  279.  Tlie  wife's  earnings  are 
her  own.  Presumptively  a  husband  supplies  the  house.  Dressel  v.  Lons- 
dale, 46  111.  App.  454. 

Sec.  664.  Answer  that  goods  furuished  wife  are  not  nec- 
essaries.— 

That  the  articles  set  forth  in  the  petition  were  furnished  to 
the  wife  [or,  child]  of  defendant  without  his  knowledge  or 
consent  and  were  not  necessaries. 

[That  the  defendant  denies  that  the  articles  so  furnished, 
or  any  part  thereof,  were  needful  or  necessary  to  her  sup- 
port] [or,  suitable  to  her  situation  or  the  defendant's  condition 
m  life]. 

Sec.  665.  Petition  hy  wife  against  husband  for  support. — 

That  plaintiff  and  the  defendant  C.  B.  were  married  on  the 
day  of ,  18 — ,  and  lived  together  as  husband  and  wife 


until  the day  of ,  18 — ,  when  said  C.  B.  deserted  the 

plaintiff  and  their  children  B.  B.,  D.  B.  and  E.  B.,  without 
cause,  leaving  them  no  provision  for  their  support,  and  has 
not  since  that  time  contributed  to  or  made  any  provision  for 
their  maintenance. 

That  said  B.  B.  is years  old,  said  D.  B.  is years 

old,  and  said  E.  B.  is years  old,  and  they  are  now  and 

have  been  since  the day  of ,  18 — ,  living  with  and 

supported  by  the  plaintiff. 

That  the  defendant  C.  B.  is  the  owner  in  fee-simple  of  the 

following  described  real  estate,  situated  in  the  county  of , 

state  of  Ohio,  to  wit:  [describe  it^,  of  the  value  of dol- 
lars, and  of  the  rental  value  of dollars  per  annum. 

That  said  C.  B.  is  also  the  owner  of  the  following  personal 
property,  situated  in  said  county  [describe  it],  of  the  value  of 
dollars. 

That  said  property  is  wholly  unincumbered,  and  that  said 
C.  B.  is  [state  his  husi?iess],  and  amply  able  financially  to  main- 
tain the  plaintiff  and  her  children. 

That  the  plaintiff  resided  and  lived  with  the  defendant  C.  B. 


§  QQQ.]  HUSBAND   AND    WIFE.  619 

until  his  desertion  of  her,  as  above  stated,  and  has  since  lived 
with  her  said  children  at' . 

That  she  has  no  property  or  means  of  her  own,  and  has 

been  compelled  since  said day  of .  18 — ,  to  support 

herself  and  children  wholly  by  her  own  labor. 

That  the  amount  necessary  for  the  support  of  the  plaintiff 
and  her  said  children  is dollars  per  annum. 

Wherefore  plaintiff  prays  the  court  for  an  order  authorizing 
her  to  rent  said  real  estate  and  sell  said  ])ersonal  property, 
a,nd  to  collect  the  rents  and  purchase-money  thereof,  and 
make  all  necessary  contracts  for  said  purpose,  and  that  judg- 
ment be  rendered  on  said  note  against  the  defendants  R.  F. 
and  L.  A.,  and  that  she  be  authorized  to  collect  and  receipt 
for  the  amount  due  on  said  judgment,  and  for  all  other  proper 
relief. 

Sec.  666.  Petition  hj  husband  against  wife  for  support. 

[C'ajjtion.'] 

That  he  has  a  bona  fide  residence  in  the  county  of , 

state  of  Ohio,  and  that  he  was  on  the day  of  — — ,  18 — , 

married  to  the  defendant  J.  H.,  and  that  no  children  were 
born  of  said  marriao-e.  That  the  defendant,  together  with 
her  son  G.  W.,  conspired  together  to  drive  plaintiff  from  his 
home.  That  they  threatened  to  take  his  life  and  do  him  some 
great  bodily  harm  if  he  did  not  leave  the  premises  of  the  de- 
fendant. That  she  threatened  him  so  cruelly,  and  her  said 
son  G.  "W.,  at   her  instigation,  and   their  treatment  was  so 

brutal,  that  on  the day  of ,  18 — ,  plaintiff  was  com- 

jjelled,  on  account  of  fear  of  great  bodily  harm,  to  leave  and 
did  leave  the  premises  of  the  defendant,  Avhere  they  resided. 
That  defendant  well  knew,  at  and  prior  to  the  time  of  their 
said  marriage,  that  plaintiff'  was  possessed  of  no  property. 
That  prior  to  said  marriage  they  talked  about  this  matter, 
and  that  defendant  said  she  knew  he  had  no  property  but 
that  made  no  difference,  for  she  had  plenty  for  both  of  them. 
That  while  they  so  lived  together  plaintiff  treated  her  kindly 
and  did  all  in  his  power  to  make  their  home  a  happy  one. 
That  he  employed  himself  as  best  he  could  in  looking  after 
her  financial  interest,  and  did  all  he  could  to  take  care  of  and 
manage  her  property  in  a  good  husband-like  manner.  Plaint- 
iff states  that  he  is years  of  age  and  is  not  able  physic- 
ally to  earn  means  with  which  to  supply  himself  with  the 
necessaries  of  life;  that  he  has  no  means  whatever,  and  is 

now  residing  temporarily  with  ,  on  whose  charity 

he  is  now  living.  That  the  defendant  owns  and  is  possessed 
of  the  following  described  real  property,  to  wit:  SJDescrijp- 
tion.] 

That  the  rents  and  profits  which  the  said  defendant  derives 
from  said  property  amount  to dollars.     That  she  is  pos- 


620  HUSBAND   AND   WIFE.  [§  667. 

sessed  of  and  has  ample  and  abundant  means  with  which  to 
support  both  plaintiff  and  defendant.  That  he  is  unable  to 
support  himself  and  wife,  but  that  the  defendant  is  able  to  do 
so,  but  refuses  to  render  support  or  assistance  to  this  plaintiff. 
Wherefore  plaintiff  asks  that  the  court  may  decree  him, 
out  of  the  proceeds  arising  from  the  rents  of  the  lands  of 
defendant,  a  reasonable  amount  of  money  for  his  mainte- 
nance and  support,  and  for  all  and  any  relief  that  the  facts  of 
the  case  may  warrant. 

Note.— Adapted  from  Hickle  v.  Hickle,  6  O.  C.  C.  490  — Pike  County 
O.  C.  C,  now  pending  in  Supreme  Court 

Sec.  667.  Action  by  wife  for  alienation  of  husband's  af- 
fections.—  There  has  been  considerable  litigation  upon  the 
subject  of  the  right  of  the  wife  to  sue  for  alienation  of  her 
husband's  affections,  and  under  the  statutes  of  the  differ- 
ent states  the  courts  are  not  in  accord  upon  the  question 
of  her  right  to  maintain  the  action  on  her  own  account.^  In 
Ohio,  however,  prior  to  the  adoption  of  the  statute  making 
changes  in  her  legal  status,  her  right  to  maintain  an  action 
for  the  loss  of  the  society  and  companionship  of  her  hus- 
band against  one  who  wrongfully  induces  and  procures  him 
to  abandon  her  was  recognized.-  Some  courts  give  her  this 
right  upon  the  theory  that  it  is  a  violation  of  her  personal 
right,  and  therefore  an  injury  to  the  person.  Others  proceed 
upon  the  principle  that  it  is  an  injury  to  property,  and  others 
sustain  the  doctrine  without  regard  to  any  statute.*  The  doc- 
trine that  the  wife  may,  under  the  modern  statutes  giving 
her  equal  rights  with  her  husband,  sue  in  her  own  name  any 
one  who  has  enticed  her  husband  from  her  or  alienated  his 
affections  and  deprived  her  of  his  society,  is  well  supported.^  It 
is  held,  however,  that  the  wife  cannot  maintain  an  action 
where,  acting  upon  the  advice  of  counsel,  she  leaves  her  hus- 
band, and  subsequently  brings  a  divorce  resulting  in  a  decree 
of  separation.* 

iSee  Seaver  t.  Adams,  24  W.  L.  B.  584 ;  23  N.  E.  Rep.  17  (1889) ;  Holmes- 

121   (N.   H.);   Duffies  v.    Duffies,   76  v.  Holmes,    133  Ind.   386;   32  N.  E. 

Wis.  374 ;  S.  C,  24  W.  L.  B.  374  Rep.  932  (Ind.,  1893). 

-  Westlake  v.   Westlake,  34  O.   S.        ^  Bennett   v.    Bennett,  supra,  and 

621.     For   form  of  petition  see  this  cases  reviewed ;  24  W.  L.  B.  121. 
case.    Clark  v.  Harlan,  1  C.  S.  C.  R        =  Buckel  v.  Suss,  21  N.  Y.  S.  907 ; 

4ia  s.   c,    18    N.    Y.    S.    719;    Rudd  v. 

3  Bennett  v.   Bennett,   116    N.   Y.  Rounds,  64  Vt  432. 


CHAPTER  44. 


INDEMNITY. 
Sec.  668.  Actions  on  an  indemnity.     I  Sec.  670.  Petition    for   damages   in- 


669.  Petition  for  defending  ac- 
tion for  money  of  another 
paid   by   plaintiff  to  de-  j 
fendant  \ 


curred   by  accepting  bill 
for  accommodation  of  de- 
fendant. 
671.  Petition  on  promise  to  save 
party  harmless. 


Sec.  668.  Actions  on  an  indemnity. —  The  doctrine  seems 
to  be  now  settled  that  if  there  be  a  contract  to  indeninify 
simply,  and  nothing  more,  then  damage  must  be  shown  be- 
fore the  party  indemnified  is  entitled  to  recover;  but  if  there 
be  an  affirmative  contract  to  do  a  certain  act  or  to  pay  a  cer- 
tain sum  of  money,  then  it  is  no  defense  to  say  that  the 
plaintiff  has  not  been  damnified;  the  measure  of  damages  in 
such  cases  is  the  amount  agreed  to  be  paid.^  An  indorser  is 
entitled  to  the  benefit  of  an  indemnity  upon  being  informed 
by  the  principal  that  he  cannot  pay  the  amount  of  indebted- 
ness, when  he  pays  the  same  to  save  the  note  from  going  to 
protest.^  "Where  an  indorser  gives  a  note  which  is  accepted 
in  payment  of  the  original  note,  it  is  considered  equivalent  to 


1  Wilson  V.  Stilwell,  9  O.  S.  467.  Se- 
curity given  by  a  principal  to  his 
surety  in  order  to  avail  a  creditor 
must  be  conditioned  to  secure  the 
debt  and  enforceable  for  its  payment ; 
if  it  is  merely  to  indemnify  the  surety 
it  cannot  be  enforced  until  he  has 
sustained  loss.  Pool  v.  Doster,  59 
Miss.  258.  If  a  mortgage  is  given  by 
one  to  indemnify  a  surety,  his  right 
of  action  does  not  accrue  until  he 
has  paid  the  debt.  McLean  v.  Rags- 
dale,  31  Miss.  701.  Though  a  contract 
of  indemnity  merely  cannot  be  sued 
upon  for  the  liability  or  exposure  to 
loss  until  actual  damage  capable  of 
appreciation  has  been  sustained,  yet 


where  the  contract  is  to  perform 
some  act.  the  neglect  is  a  breach,  and 
will  give  immediate  action.  Lathrop 
V.  Hatvvood,  21  Conn.  117.  Where  the 
condition  of  a  mortgage  is  to  save  the 
mortgagee  harmless  from  the  pay- 
ment of  a  debt  owing  by  the  mort- 
gagor for  which  the  mortgagee  was 
surety,  no  action  can  be  maintained 
on  the  mortgage  until  the  mortgagee 
has  paid  the  debt.  Forbes  v.  McCoy, 
15  Neb.  632.  See  further,  Collier  v. 
Ervine,  2  Mont.  335;  Stout  v.  Folger, 
84  la.  74 ;  Maloney  v.  Nelson,  24  N, 
Y.  S.  147 ;  Port  v.  Jackson,  17  John. 
239. 

2  Bank  v.  Davis,  24  O.  S.  190. 


622  INDEMNITY.  [§  669. 

payment  in  money,  so  as  to  entitle  him  to  an  action  upon 
an  indemnity  before  he  has  in  fact  paid  the  mone3\^  The  rule 
that  where  the  principal  indemnifies  one  of  several  sureties 
each  is  entitled  to  share  therein  does  not  apply  where  such 
indemnity  is  furnished  by  a  stranger.  Where  the  wife  of  a 
principal  mortgages  her  realty  for  the  benefit  of  one  of  her 
husband's  sureties,  the  same  will  not  inure  to  the  benefit  of  his 
co-surety.-  But  a  mortgage  executed  to  one  of  several  sure- 
ties upon  the  bond  of  an  officer  inures  to  the  benefit  of  all, 
as  well  as  additional  sureties.^  A  verbal  promise  by  a  judg- 
ment creditor  to  indemnify  an  officer  holding  an  execution 
for  any  damages  arising  from  the  seizure  or  sale  of  property 
claimed  by  the  debtor  to  be  exempt  is  not  within  the  statute 
of  frauds,  but  is  an  original  promise.* 

Sec.  669.  Petition  for  defending  action  for  money  ot 
another  paid  by  plaintiff'  to  defendant. — 

That  on  the  day   of  ,  18 — ,  the  plaintiff,  having 

dollars  belonging  to  A.  B.,  at  the  defendant's  request 

delivered  the  same  to  him,  the  defendant,  who  claimed  it,  and 
not  knowing  to  whom  it  belonged. 

That  the  said   A.  B.  then  threatened  to  bring  an  action 

against  plaintiff  for  said  money ;  and  therefore  on  the 

day  of ,  18 — ,  plaintiff,  at  the  defendant's  request,  agreed 

with  him,  the  defendant,  to  defend  said  action  of  A.  B.  for 
said  money,  in  consideration  whereof  the  defendant  promised 
to  save  plaintiff  harmless  from  the  consequences  of  said  action. 
\_Here  insert  substance  of  indemnity. '\ 

Thereafter  the  said  A.  B.  prosecuted  an  action  against  plaint- 
iff for  said  money  in  the  court  of  the  state  of  Ohio,  of 

which  the  defendant  had  notice,  wherein was  plaint- 
iff and was  defendant,  being  cause  numbered . 

That  plaintiff,  with  the  privity  of  the  defendant  and  in  compli- 
ance with  his  said  agreement,  defended  said  action  to  the  best 
of  his  ability,  but  said  A.  B.  by  the  consideration  of  said  court, 

on  the day  of ,  18 — ,  recovered  a  judgment  against 

the  plaintiff  in  said  action  for  dollars,  and dollars 

costs,  w^hich  plaintiff  was  compelled  to  and  did  pay,  and  plaint- 
iff was  put  to  further  expense  of dollars  in  defending  said 

action. 

That  said  sums,  amounting  to  dollars,  are  now  due 

from  the  defendant  to  plaintiff  and  unpaid. 

Note. —  Changed  from  Thornton's  Forms. 

1  Bausman    v.    Guaranty   Co.,    47        3  Bank  v.  Teeters,  31  0.  S.  86. 
Minn.  377.  *  Mays  v.  Joseph,  34  O.  S.  28. 

2  Leggett  V.  McClelland,  39  O.  S.  624. 


§§  610,  671.]  INDEMNITY.  623 

See.  670.  Petition  for  damages  incurred  by  accepting  bill 
for  accommodation  of  defendant. — 

Plaintiff  says  that  on  the day  of ,  18 — ,  he  entered 

into  an  agreement  with  the  said  defendant  that  he  would 
accept  for  the  accommodation  of  said  defendant  a  certain  bill 

of  exchange  bearing  date ,  18 — ,  drawn  by  defendant  on 

plaintiff,  payable  at  sight,  to  the  order  of  defendant,  in  the 

sum  of dollars,  and  to  deliver  the  same  to  the  defendant, 

to  be  negotiated  by  him  for  his  own  benefit.  Defendant 
promised,  in  consideration  of  the  agreement  on  the  part  of 
this  plaintiff  as  aforesaid,  that  he  would  hold  plaintiff  harm- 
less from  any  loss  or  damage  by  reason  of  said  acceptance. 

Plaintiff  did,  on  said  day,  accept  said  bill  of  exchange  and 
delivered  it  to  defendant  for  his  accommodation,  and  defend- 
ant negotiated  the  same. 

That  on  the day  of ,  IS — ,  plaintiff,  as  such  acceptor, 

was  called  upon  and  obliged  to  pay  K.  F.,  the  holder  thereof, 
the  amount  therein  specified,  with  interest  and  costs  of  an  ac- 
tion brought  upon  said  bill  in  the court  of  common  pleas 

of county,  Ohio,  against  plaintiff,  and  plaintiff  was  obliged 

to  and  did  pay dollars  costs  in  defending  said  action. 

That  by  reason  of  the  above-mentioned  facts  plaintiff  has 

been  damaged  to  the  amount  of  said  sums,  being dollars, 

no  part  of  which  has  been  paid,  and  which  is  now  due. 

Note. —  Changed  from  Thornton's  Forma. 

Sec.  671.  Petition  on  a  promise  to  save  snrety  harmless. 

That  the  said  defendant,  on  the day  of ,  18 — ,  in 

c*)nsideration  that  he,  the  said  plaintiff,  would  by  his  bond  or 
writing  obligatory,  bearing  date  on  the  day  and  year  afore- 
said, become  held  and  firmly  bound  as  surety  for  one  J.  B. 

unto  A.  x\.,  then  sheriff  of  the  county  of ,  in  the  penal 

sum  of dollars,  to  be  paid,  etc.  \clescrihtng  the  penal  jpart 

of  the  said  bond'],  and  which  said  bond  or  writing  obligatory 
was  to  contain  a  certain  condition  that  if.  etc.  [here  set  forth 
condition  substantially]^  he,  the  said  defendant,  would  in- 
demnify and  save  harmless  him,  the  said  plaintiff,  of,  from 
and  against  all  damages,  costs  and  charges  which  he  might 
sustain  or  be  put  to,  for  or  by  reason  of  his  becoming  surety 
as  aforesaid,  in  manner  aforesaid,  for  the  said  J.  B. ;  and  the 
said  plaintiff,  confiding  in  such  promise  and  undertaking  of 
the  said  defendant  in  manner  aforesaid  made  to  said  plaintifi", 
did,  in  consideration  thereof,  duly  execute  and  deliver  the 
aforesaid  bond  or  writing  obligatory  unto  the  said  A.  A. 

And  the  plaintiff  further  alleges  that  \]iere  state  when  and 
in  what  manner  the  plaintiff  was  damnified  in  consequence  of 
his  becoming  surety\  of  all  which  the  said  defendant  after- 
wards, to  wit,  on,  etc.,  had  due  notice,  but  that  the  defendant 
has  not  paid  the  said  amount  or  any  part  thereof. 

{Prayer:] 


CHAPTER  45. 


INFANTS. 


Sec.  673.  Actions  by  infants. 

673.  Actions  against  an  infant. 

674.  Petition  against  infant  for 

necessaries  furnislied. 

675.  Defense  by  infant. 


Sec.  676.  Answer    claiming  infancy 

when  contract  was  made. 

677.  Answer    of     parent     that 

goods    furnished    minor 

child  were  not  necessaries. 


Sec.  672.  Actions  by  infants. —  The  statute  of  limitation 
begins  to  run  against  a  minor  upon  his  arrival  at  the  age  of 
majority.^  An  action  by  an  infant  must  be  brought  by  his 
guardian  or  next  friend;  if  brought  by  a  next  friend,  the 
court  may  dismiss  it  if  it  is  not  for  the  benefit  of  the  infant, 
or  substitute  the  guardian  or  any  person  as  the  next  friend.^ 
The  verification  of  the  petition  may  be  by  the  agent  or  attor- 
ney of  the  infant.^  The  next  friend  is  made  liable  for  the 
costs  of  an  action  brought  by  him,  and,  if  he  is  insolvent,  the 
court  may  upon  motion  require  security.*  The  infant  is  not 
liable  to  judgment  for  costs.^  The  court  may  remove  a  guard- 
ian ad  litem  upon  failure  to  faithfully  perform  his  duties  and 
appoint  another  in  his  stead.^  Minority  is  a  fact  which  must 
be  distinctly  averred  in  an  action  that  it  may  be  traversed.'' 
The  jurisdiction  of  equity  to  protect  infants  is  not  limited  to 
cases  where  there  is  a  fiduciary  relation,  but  is  extended 
to  all  cases  where  influence  is  acquired  and  abused,  or  confi- 
dence reposed  and  betrayed.^  An  infant  may  rescind  any 
<jontract  made  by  him  during  uiinority,  except  one  for  the 
purchase  of  necessaries,  and  prosecute  an  action  for  the  re- 
covery of  any  consideration  paid  by  him.' 

Sec.  673.  Actions  against  an  infant. —  A  contract  by  an 
infant  is  voidable  only,  and  will  become  valid  and  enforceable 


1  Slater  V.  Cane,  3  O.  S.  80. 

!« O.  Code,  sec.  4998. 

»0.  Code,  sec.  ol09. 

«0.  Code,  sec.  4999. 

SKleffel  V.  Bullock,  8  Neb.  336. 


6  O.  Code,  sec.  5001. 

7  Hauly  V.  Levin,  5  O.  227,  22a 

8  Loug  V.  ilulford,  17  O.  &  485. 
SLemmon  v.  Beeman,  45  O.  S.  505. 


§  674.]  INFANTS.  625 

upon  his  ratification  upon  arriving  at  the  age  of  majority;^ 
he  cannot  avoid  a  portion  and  affirm  the  remainder,  but  must 
rescind  the  whole  of  it.-  It  seems  to  be  generally  conceded 
that  an  infant  affirms  a  contract  made  by  him  during  minority 
by  remaining  silent  beyond  a  reasonable  time  after  he  becomes 
of  age.'^  While  the  law  protects  an  infant  from  contracts 
made  during  minority,  it  will  not  relieve  him  from  responsi- 
bility for  a  tort  committed  by  him.  He  is  held  liable  for  any 
careless,  negligent  or  intentional  injury;^  and  is  liable  also 
for  stock  in  a  corporation  purchased  by  him  during  minority 
but  held  until  majority.'  A  person  having  control  of  an  infant 
should  first  surrender  the  advantages  arising  from  his  fiduciary 
capacit}''  before  he  prosecutes  a  suit  against  the  infant  in  which 
any  defense  is  made.^  The  doctrine  that  an  infant  is  not  liable 
on  a  note  given  for  necessaries  is  well  supported :  nor  can  he 
be  held  liable  in  an  action  thereon,  either  by  a  payee  or  by  a 
surety." 

Sec.  674.  Petition  against  parent  for  necessaries  fur- 
nished.— 

Plamtiff  sa^'s  that  the  defendant  A.  B.  is  the  father  of  C.  D., 

who  is  a  minor  of  the  age  of j^ears,  and  that  between 

the day  of ,  18 — .  and  the day  of ,  IS — ,  he 

fufnished  the  said  defendant's  minor  son  articles  which  were 
necessary  for  the  maintenance  and  support  of  said  minor  son, 
and  that  there  is  due  therefor  from  said  defendant  A.  B.  as 
such  parent,  upon  an  account  for  said  necessaries  so  furnished 

by  this  plaintiff,  the  sum  of  ^ ,  with  interest  from  the 

day  of ,  18 — ,  a  copy  of  which  apcount  is  as  follows,  to 

wit :  \_Copy  of  account.'] 

Plaintiff  further  says  that  on  the day  of ,  IS — ,  he 

iHarner  v.    Dipple,   31   O.   S.    72.  <  Bullock  v.  Babcock,3  AVend.  391 

There  are  many  decisions  to  the  ef-  Conkliu  v.  Thompson,  29  Barb.  218 

feet  that  an  infant's  contract  is  void-  Peigne  v.  Sutcliffe,  17  Am.  Dec.  756 

able,  and   may  be   avoided  by  him  Peterson  v.  Haffner,  59  Ind.  103;  26 

during  his  infancy  or  on  his  arrival  Am.  Rep.  354;  Field  on  Infants,  sec. 

at  full  age.     Avers  v.  Burns,  87  Ind.  23. 

248,  and  cases  cited,  5  Hardman  v.  Railway  Co.,  15  W. 

2  Curtiss  V.  McDougal,  26  O.  S.  66 ;  L.  B.  164. 

Morse  v.  Wheeler.  4  Allen.  570 ;  Taft  •*  Long  v.  Mulford.  17  O.  S.  485, 

V.  Sergeant,  18  Barb.  320.  '  Henderson   v.    Fox.   5   Ind.  489 ; 

3  Langdon  v.  Clayson,  75  Mich,  204 ;  Ayers  v.  Burns.  87  Ind.  245 ;  Price  v. 
Buchanan  v.  Hubbard,  128  Ind.  187 ;  Sanders.  60  Ind.  310 ;  Tyler  on  In- 
Dillon  V,  Burnham,  43  Kan.  77,  fancy  (2d  ed.),  p.  111. 

4C 


626  INFANTS.  [§  675. 

demanded  payment  therefor  from  said  defendant,  which  was 
refused. 

Wherefore  plaintiff  asks  judgment  against  said  defendant 
for  said  sum  of  $ ,  with  interest,  etc. 

Note. —  Food,  clothing,  lodging  and  medical  attendance  come  within 
the  term  necessaries :  it  also  includes  all  articles  suitable  to  the  station  of 
life.  Price  v.  Sanders,  60  Ind.  310.  It  is  a  question  to  be  determined  by 
the  jury.  Garr  v.  Haskett,  86  Ind.  373.  In  an  action  against  a  parent  for 
necessaries  the  plaintiff  should  allege  the  circumstances  from  whicli  a 
promise  by  the  parent  to  pay  for  the  same  may  be  implied.  Ramsey  v. 
Ramsey,  131  Ind.  215. 

Sec.  675.  Defenses  by  infant. —  The  defense  of  an  infant 
to  a  suit  must  be  made  by  a  guardian  appointed  by  the  court 
in  which  the  action  is  prosecuted,  or  by  a  judge  thereof;^  and 
an  appointment  cannot  be  made  until  the  minor  has  been  prop- 
erly served .2  It  is  the  duty  of  the  guardian  ad  litem  to  make 
a  proper  defense  and  bring  before  the  court  all  the  rights  of 
his  ward;  and  the  infant  is  entitled  to  his  day  in  court  before 
an  absolute  decree  can  be  taken  against  him.^  The  answer 
should  deny  all  material  allegations  in  the  petition  which  are 
prejudicial.^  An  answer  by  a  guardian  ad  litem  alleging  his 
ignorance  of  the  matters  contained  in  the  petition,  and  pray- 
ing that  the  rights  of  his  ward  be  protected,  is  in  effect  a  gen- 
eral denial.^  A  guardian  defending  an  action  for  an  infant  is 
relieved  from  verifying  his  pleading.^  Infancy,  when  pleaded, 
is  a  valid  defense  to  an  action  for  breach  of  promise.^  A  de- 
fense by  a  minor  that,  at  the  time  he  ratified  a  contract  made 
in  his  minority,  he  did  not  know  that  he  was  legall}^  liable 
thereon,  is  not  good.^  A  decree  rendered  against  minor  de- 
fendants upon  the  answer  of  a  guardian  ad  litem  may  be 
impeached  for  fraud;®  and  a  decree  against  minor  defendants 
who  have  not  been  served  with  process  is  void.^" 

1 0.  Code,  sec.  5003.  ^  o.  Code,  sec.  5078. 

2  0.  Code,  sees.  5004,  5047 ;  Keys  v.  5  Wood  v.  Butler,  23  O.  S.  520. 
McDonald,  1  Handy,  287.  «  O.  Code,  sec.  5103. 

3  Long  V.    Mulford,    17   O.  S.  485.  "^  Rush  v.  Wick,  31  O.  S.  521, 
See  St.  Clair  v.  Smith,  3  O.  364 ;  Mor-  «  Anderson  v.  Seward,  40  O.  325. 
gan  V.  Burnet,  18  O.  535.     A  decree  ^  Massie  v.  Matthews,  12  O.  351. 
cannot  be  taken  against  an  infant  by  lo  Moore  t.  Starks,  1  O.  S.  369.     See 
default,  but  the  plaintiff  must  prove  Robb  v.  Irwin,  15  O.  689. 

his  case.    Massie  v.  Donaldson,  8  O. 
877. 


§§  676,  67  INFANTS.  627 

Sec.  676.  Answer  claiming  infancy  when  contract  was 
made. — 

That  he  admits  the  making  of  the  contract  sued  on,  and 
that  he  received  from  the  defendant  in  consideration  thereof 
dollars  [or^  the  following  property,  descrihe  if]. 

That  the  defendant  was  at  the  time  of  making  said  con- 
tract an  infant  under  the  age  of  twenty-one  years. 

That  within  a  reasonable  time  after  he  arrived  of  age,  to 
wit,  on  the day  of ,  18 — ,  he  tendered  to  the  plaint- 
iff said  sura  of dollars  [w,  said  property]  and  demanded 

the  redelivery  to  him  and  rescission  of  said  contract,  but  the 
plaintiff  refused. 

Note. —  The  true  doctrine  is  that  no  contract  of  an  infant  is  absolutely 
void.  1  Parsons  on  Cont,  295,  328 ;  Harner  v.  Dipple,  31  O.  S.  72 ;  Lemmon 
V.  Beeman,  45  O.  S.  509;  Owen  v.  Long,  112  Mass.  403;  Anderson  v.  Seward, 
40  O.  S.  328.  The  privilege  of  affirming  or  disaffirming  a  contract  is  per- 
sonal to  the  infant,  and  not  available  to  third  persons.  Lemmon  v.  Bee- 
man,  supra. 

Sec.  677.  Answer  of  parent  that  goods  furnished  minor 
child  were  not  necessaries. — 

Defendant  for  answer  to  the  petition  herein  says  that  he 
admits  that  C.  D.  is  his  minor  child,  but  that  the  goods  set 
forth  in  the  petition  were  not  furnished  to  his  said  minor  son 
with  his  knowledge  or  consent,  and  denies  that  the  goods  so 
furnished,  or  any  portion  thereof,  were  necessary  for  the  sup- 
port or  maintenance  of  his  said  minor  child. 

"Wherefore,  etc. 


CHAPTER  46. 


INJUNCTION. 


Sec.  689.  Petition  to  enjoin  partner 
from  engaging  in  busi- 
ness after  dissolution  of 
partnership  contrary  to 
agreement. 
Petition  to  enjoin  judicial 

sale  of  real  estate. 
Petition  to  enjoin  sale  of 
exempt  property    under 
execution. 

691a.  Petition  to  restrain  strik- 
ers from  interfering  with 
business. 

691b.  Petition  to  enjoin  railroad 
strikers. 


690. 


691. 


Sec.  678.  Injunction  defined. 

679.  When     and     by    whom 

granted. 

680.  Causes  for  which   injunc- 

tion will  lie 

681.  AVhen  it  will  not  lie. 

682.  Pleading  and  practice. 

683.  Motion  to  vacate. 

684.  Second  application. 

685.  Petition  to  enjoin  infringe- 

ment of  trade-mark. 

686.  Petition  to  enjoin  nuisance 

caused  by  noise. 

687.  Petition  to  enjoin  operation 

of  slaughter-house. 

688.  Petition    to    enjoin    waste 

and  for  damages.  I 

Sec.  678.  lujuiictioii  deflued. —  rnjunction  is  a  command 
to  refrain  from  a  particular  act;  it  may  be  the  final  judgment 
in  an  action,  or  it  may  be  allowed  as  a  provisional  remedy ; 
and  when  so  allowed  it  shall  be  by  order.^ 

Sec.  679.  AVheii  and  by  whom  granted.— The  supreme 
court,  the  circuit  court,  the  common  pleas  court,  or  a  judge  of 
either,  or  a  judge  of  the  probate  court,  may  grant  an  injunc- 
tion. An  injunction  may  be  granted  at  the  time  of  the  com- 
mencement of  the  suit,  or  at  any  time  afterwards  before 
judgment.  In  the  absence  of  the  respective  judges  from  the 
county,  the  probate  judge  may  grant  an  injunction.  If  an  in- 
junction has  been  vacated  in  the  common  pleas  court,  and  an 
appeal  taken  to  the  circuit  court,  the  latter  may  grant  an  in- 
junction at  any  time  before  judgment  in  that  court  upon  its 
appearing  satisfactorily  by  affidavits  that  the  party  is  entitled 
thereto.  Upon  like  proof  an  injunction  will  be  allowed  dur- 
ing the  pendency  of  proceedings  in  error.^  A  judge  of  the 
supreme  court  at  chambers  cannot  grant  or  dissolve  an  in- 
junction in  a  case  pending  in  another  court.'    The  supreme 

1 0.  Code,  sec.  5572.  '  Eailway  Co.  v.  Hurd,  17  O.  a  144; 

2  0.  Code.  sec.  5578.  Kent  v.  Mahaffy,  2  O.  S.  498. 


§  680.]  INJUNCTION.  629 

court  may  allow  a  temporary  injunction  when  it  appears  that 
the  defendant  threatens  to  do  acts  which  would  make  the 
judgment  to  be  rendered  in  the  action  ineffectual.^  The  pro- 
vision conferring  power  upon  the  judge  of  the  probate  court 
to  grant  injunctions  in  actions  pending  in  other  courts  of  the 
state,  in  the  absence  of  the  judges  from  the  county,  is  not  in 
conflict  with  the  constitution.^ 

Sec.  680.  Causes  for  which  injunction  will  lie. —  An  in- 
junction will  lie  to  restrain  the  commissioners  of  a  county 
from  letting  or  contracting  for  work  in  constructing  an  im- 
provement where  the  proceedings  leading  up  to  the  deter- 
mination of  making  the  improvement  have  been  irregular;* 
or  to  enjoin  them  from  appropriating  or  expending  money  in 
the  construction  of  a  road  until  the  right  of  way  has  been 
properly  obtained;*  or  to  prevent  them  from  levying  a  tax,* 
or  from  entering  into  a  contract,  contrary  to  law.*' 

Equity  will  interfere  with  the  management  of  the  affairs  of 
a  corporation  at  the  suit  of  stockholders  only  where  their 
proposed  action  is  plainly  illegal."  A  preliminary  injunction 
to  restrain  directors  of  a  corporation  from  making  an  assign- 
ment, or  from  disposing  of  its  assets,  has  been  granted  in  an 
action  to  enforce  the  statutory  liability,  where  the  insolvency 
of  the  corporation  is  apparent.^  Unlawful  and  injurious  dis- 
crimination committed  or  threatened  by  a  common  carrier 
may  be  enjoined.^  Equity  will  grant  relief  in  contracts  and 
enforce  by  injunction  a  stipulation  in  a  deed  that  the  grantee 
will  not  use  premises  for  certain  purposes ;  "^  and  it  will  prevent 
a  breach  of  a  contract  where  the  provisions  are  plain  and  the 

1  Wagner  v.  Railwa}'  Co.,  38  O.  S.        ^  Lomis  v.   Dexter,  20  W.  L.  B.  5 ; 
32;  Yeoman  v.  Lasley,  36  O.  S.  416.     Cook  on  Stock  &  S.,  sec.  677;  State 

2  Phelon  V.  Railroad  Co.,  5  O.  C.  C.     v.  Smith,  48  Vt  268. 

545.  8  Upson  v.  Quarry  Co.,  2  Clev.  Rep. 

3  Makemson  v.  Kauff man,  35  O.  S.     355. 

444 ;  Varnholt  v.  Gordon,  30  W.  L.  B.  9  Schofield  v.  Railway  Co.,  43  O.  S. 

33.  571. 

*  State  V.  Commissioners,  39  O.  S.  i«  Stines  v.   Dorraan,  25  O.  S.  580 ; 

58;  Hayes  v.  Jones,  27  O.  S.  218.  Atlantic  Dock  Co.  v.  Leavitt,  54  N. 

5  Commissioners  v.  Croweg,  24  O.  S.  Y.  35.     Such  an  agreement  binds  all 

492.  subsequent  grantees.     Id. ;    Barrow 

« Ruffner  v.  Commissioners,  1  Disn.  v.  Ricliard,  8  Paige,  351. 
39;  McArthur  v.  Kelly,  5  0.  139. 


630  INJUNCTION.  [§  680. 

alleged  breach  is  not  disputed.^  An  injunction  will  lie  in  be- 
half of  a  devisee  against  the  son  of  a  testator  to  prevent  the 
latter  from  performing  certain  acts  pending  the  determination 
of  legal  rights.'  An  injunction  has  been  allowed  to  prevent 
the  erection  of  poles  in  a  street  without  the  consent  of 
abutting  property  owners ; '^  to  prevent  the  laying  of  pipes 
through  streets,  with  the  consent  of  the  city,  for  the  purpose 
of  transporting  and  selling  gas,  without  compensation  to  the 
owners  of  the  fee  therein;*  and  to  prevent  a  natural-gas 
company  from  refusing  to  furnish  gas  to  a  person  claiming 
the  rio-ht  to  do  so  under  an  unreasonable  ordinance  which  the 
court  must  declare  void.'  An  injunction  will  lie  to  restrain 
the  enforcement  of  a  judgment,  even  where  the  record  shows 
on  its  face  that  service  was  properly  made.  That  this  relief 
may  be  granted  it  must  appear  that  there  was  fraud,  col- 
lusion or  misconduct  in  procuring  the  same,  and  it  must 
also  be  shown  that  the  defendant  would  have  a  good  defense 
if  the  judgment  were  set  aside.^  To  enjoin  a  judgment  at  law 
on  the  orround  of  illegal  interest  the  bill  should  show  a  tender 
of  the  amount  equitably  due.^  A  sale  of  the  property  of  the 
wife  will  be  enjoined  on  an  execution  against  the  husband, 
even  where  there  is  an  adequate  remedy  at  law.^  It  will  lie  to 
prevent  a  creditor  of  a  husband  from  selling  property  of  the 
wife  on  execution.^  A  sale  by  a  sheriff  by  virtue  of  an  execu- 
tion under  a  void  judgment  in  attachment  proceedings  may 
be  restrained  by  injunction.^'*  It  is  not  necessary  to  make  a 
sheriff  a  party  to  an  action  to  enjoin  a  judgment  upon  which 
execution  is  issued."  And  where  no  objection  is  made  to  the 
mode  of  proceedings,  relief  by  injunction  will  be  granted 
against  the  enforcement  of  an  execution.^^ 

1  Lacey  v.  Heuck.  12  W.  L.  B.  i09 ;     85 ;  Giflford  v.  Commissioners,  37  O.S. 
Paragon  Oil  Co.  v.  Hall,  7  O.  C.  C.     502. 

240.  '  Shelton  v.  Gill.  11  O.  417. 

2  Piatt  V.  Piatt,  2  Disn.  408.  «  McCleary  v.  Snider,   1  W.  L.  M. 

3  McLean  v.  Electric  Light  Co.,  9    270. 

W.  L.  B.  65.     See  Met.  Tel.  Co.  v.  9Scheferliug  v.  Huffman,  4  O.S. 

Coldwell  Lead  Co.,  12  W.  L.  B.  104.  241. 

*Webb  V,  Ohio  Gas  Fuel  Co.,  16  lOWood  v.  Stanberry,  21  O.  S.  142. 

W.  L.  B.  121.  11  Allen  v.  Medill.  14  O.  445. 

5  Toledo  V.  Gas  Co.,  5  O.  C.  C.  557.  12  Miller  v.  Longacre,  26  O.  S.  291; 

6  Dixon  V.  Varnish  Co.,  21  W.  L.  B.  Crawford  v.  Thurmond,  3  Leigh,  85. 
258 ;  McCurdy  v.  Baughman,  43  O.  S. 


§  680.]  iNJUNCTiox.  631 

The  treatment  accorded  labor  unions  by  courts  in  recent 
decisions  has  had  the  effect  of  interfering  with  their  methods 
to  a  ffreat  extent.  The  rio^ht  of  workmen  to  combine  for 
their  own  protection,  and  to  persuade,  in  a  reasonable  man- 
ner, fellow-laborers  to  abstain  from  w^orking,  is  clearly  recog- 
nized. The  legality  or  illegality  of  any  of  their  acts  must  be 
determined  by  the  manner  of  their  performance.  The  mo- 
ment, however,  they  step  beyond  the  boundary  line  of  a  *'  rea- 
sonable manner,'-  and  attempt  to  accomplish  their  ends  by 
means  of  threats,  intimidation,  violence  or  obstruction,  and 
interfere  with  the  rights  of  and  cause  injury  to  others,  the 
law  will  interpose  an  objection  and  prevent  the  same;  and 
it  goes  to  the  extent  of  allowing  a  remedy  by  injunction  to 
prevent  strikers  from  acts  tending  to  the  ultimate  destruction 
of  or  interference  with  property.^  The  remedy  has  been 
allowed  also  against  persons  w^ho  have  entered  into  a  con- 
spiracy to  compel  a  common  carrier  to  refuse  to  receive  and 
handle  certain  freight.^ 

A  lessor  may  maintain  an  action  against  an  assignee  of  his 
lessee  to  prevent  him  from  making  such  use  of  the  premises 
as  will  amount  to  a  violation  of  the  terms  of  the  lease.'  And 
it  will  lie  in  favor  of  a  mill-owner,  who  has  a  lease  from  the 
officials  of  the  state  to  use  a  certain  amount  of  water,  to  pre- 
vent a  subsequent  lessee  from  drawing  water  from  the  same 
source  in  such  a  manner  as  to  interfere  with  his  prior  right.* 
It  is  the  proper  remedy  also  to  determine  a  disputed  ques- 
tion as  to  the  amount  of  money  to  be  paid  to  the  state 
as  a  license.^  It  has  been  held  also  that  a  temporary  in- 
junction will  lie  to  prevent  municipal  authorities  from  closing 
up  a  man's  business,  as  being  in  the  nature  of  an  iuterfer- 

1  Perkins  v.  JRogg,  27  W.  L.  B.  32  Chicago  Legal  News,  41.    See  Rail- 

(Cin.   Super.   Ct.,  1892) ;  Springhead  way  Co.  v.  Railway  Co.,  29  W.  L.  B. 

Spinning  Co.   v.   Riley,  L.  R.  6   Eq.  227. 

Cases,  557 ;  N.  Y.,  L.  E.  &  W.  R.  Co.  v.  2  Railway   Co.  v.   Railway   Co.,  29 

Wenger,  17  W.  L.  B.  306.     Injunction  W.  L.  B.  233  (U.  S.  C.  C.  N.  D.  O.). 

has  been  granted  to  prevent  labor  ^  Nova  C.  H.  Lodge  v.  White,  2  C. 

unions  from  interfering  with  work-  S.  C.  R  6. 

men.     Coeur   D'Alene    Consolidated  *  Detwiler  v.  Toledo,  5  O.  C.  C.  360. 

■&  Mining  Co.   v.  Miners'   Union   of  5  State  ex  rel.  v.  Hahn,  3U  W.  L.  B. 

Warder  et  al.,  29  W.  L.  B.  60 ;  25  391 ;  s.  a,  50  O.  S.  714. 


632  INJUNCTION.  [§  680. 

ence  with  property.^     And  it  will  lie  against  a  municipality 
to  prevent  the  pollution  of  a  stream  from  a  sewer.- 

A  city  solicitor  may  appl}^  in  the  name  of  a  corporation  for 
an  injunction  against  a  misappropriation  of  its  funds,  or  the 
abuse  of  its  corporate  powers,  or  the  execution  or  performance 
of  any  contract  made  in  behalf  of  the  corporation  in  contra- 
vention of  laws  or  ordinances  giving  the  same,  or  which 
was  procured  by  fraud  on  the  corporation.^  If  the  solic- 
itor fails  to  bring  the  suit,  a  tax-payer  may  maintain  it  in 
his  own  name  on  behalf  of  the  corporation.*  To  sustain  an 
action  under  this  provision,  it  must  be  based  upon  defects  or 
irregularities  which  are  plainly  jurisdictional  or  of  such  a 
character  that  the  equity  or  justice  of  the  case  demands  inter- 
ference by  the  court.^  The  city  solicitor  may  file  a  petition 
for  an  injunction  in  the  name  of  a  tax  payer  with  his  consent, 
without  it  being  made  to  appear  that  he  had  been  requested 
in  writing  by  the  tax-payer  to  do  so ;  ^  and  it  should  be  in 
the  name  of  the  tax-payer,  on  behalf  of  the  corporation,  and 
not  simply  as  a  tax-payer.'  When  the  suit  is  brought  by  a 
city  solicitor  it  is  not  necessary  to  give  a  bond.^  A  property 
owner  sustaining  special  damages  may  maintain  an  action  to 
prevent  the  carrymg  on  of  a  business  in  such  a  manner  as  to 
become  a  nuisance.^  A  partner  may  enjoin  his  copartner 
from  engaging,  during  the  existence  of  a  partnership,  in  a 
business  in  competition  with  that  carried  on  by  the  partner- 
ship;^** and  the  use  of  the  firm  name  by  his  former  partner 
may  be  enjoined  by  a  retiring  partner  upon  dissolution." 

Injunction  will  lie  to  restrain  an  attachment  proceeding 
against  exempt  property ;  ^-  and  under  special  circumstances  to 

1  Ryan  v.  Jacob.  6  W.  L.  B.  139.  6  Cincinnati  Street  R  Co.  v.  Smith, 

2  Cilly  V.  Cincinnati,  2  W.  L.  B.  135.     29  O.  S.  291. 

3R    S.,  sec.  1777,  as  amended  87  '^Hensly  v.  Hamilton,  3  O.  C.  C. 

O.  L.  122.  201. 

*  R  S.,  sec.  1779 ;  Miller  v.  Pearce,  «  Forsythe  v.  Winans,  44  O.  S.  277. 

2  C.  S.  C.  R  44 ;  Mathers  v.  Cincin-  9  Barkau   v.  Kneckt,  10  W.  L.  B. 

nati,   3  W.   L.    B.   709 ;  Haskins    v.  342.     See  Schuelter  v.  Billingheimer, 

Street  Railroad  Co.,  4  W.  L.  B.  1126 :  14  W.  L.  B.  224. 

Findlay  Gas  Light  Co.  v.  Findlay,  2  w  Halladay  v.  Faurot,  9  W.  L.  B.  93. 

O.  C.  C.  237.  11  McGowan  v.  McGowan,  22  O.  S. 

8  Sloane  v.  Railway  Co.,  5  O.  C.  C.  370. 

84.  12  Snook  v.  Snetzer,  25  O.  S.  516. 


§  680.]  INJUNCTION.         >  633 

enforce  the  execution  of  a  trust,  and  to  preserve  the  property 
from  waste ;  ^  or  to  prevent  the  unlawful  use  of  a  school-house.^ 
Although  injunction  is  not  the  proper  remedy  to  try  title  to 
public  offices,  or  to  determine  questions  concerning  the  au- 
thority to  make  appointments  thereto,  it  may  be  employed 
by  an  incumbent  to  protect  his  possession  against  interfer- 
ence by  an  adverse  claimant  whose  title  is  in  dis))ute,  until 
it  shall  have  been  established  by  law.^  It  will  also  lie  to  pre- 
vent a  disclosure  or  unauthorized  use  of  an  invention  of  a 
secret  process ;  ^  or  to  prevent  the  collection  of  notes  given 
for  a  void  patent-right ;  ^  or  to  prevent  the  construction  of  a 
railroad  in  the  streets  of  a  city  until  a  right  has  been  first  ob- 
tained;" or  to  prevent  the  removal  or  sale  on  execution  of 
portions  of  mortgaged  property  of  a  railroad  company,  when 
the  whole  property  mortgaged  is  admitted  to  be  inadequate 
security  for  the  payment  of  the  mortgage  debts.^  After  a 
railroad  company  has  taken  possession  of  a  right  of  w^'iy  and 
located  and  completed  its  road,  an  injunction  will  issue  to  re- 
strain the  company  from  taking  any  additional  part  of  such 
land.^ 

The  construction  of  a  street  railway  with  the  consent  of 
property  owners  may  be  enjoined.^  It  will  lie  to  prevent  the 
collection  of  taxes  illegally  imposed,^^  and  to  restrain  a  county 
auditor  from  improperly  placing  property  on  the  tax  duplicate," 
although  he  will  not  be  enjoined  from  placing  upon  the  dupli- 
cate, valuation  of  property  returned  by  an  assessor  until  all 
other  remedies  have  been  exhausted.^-  It  will  also  lie  to  re- 
strain the  collection  of  a  special  tax  levied  by  the  city  council 

1  Winslow  V.  Iron  &  Nail  Factory,  41 ;  Street  Railway  Co.  v.  Cummins- 
1  Disn.  229.  ville,  14  O.  S.  524. 

2  Weir  V.  Day,  35  O.  S.  143.  7  Lane  v.  Railroad  Co.,  17  O.  S.  642. 

3  Remelin  v.  Mosby,  25  W.  L.  B.  8  Warner  v.  Railroad  Co.,  39  O.  S. 
120 ;  47  O.  S.  570 ;  Guillote  v.  Poincy,  70. 

6  S.  Rep.  507 ;  41  La.  Ann.  333 ;  Kerr  9  Roberts  v.  Easton,  19  O.  S.  78. 

V.  Trego,  47  Pa.   St.  292 ;  2  High  on  10  Frazer  v.  Seibern,  16  O.  S.  614 ; 

Inj.,  sec.  1315.  Mitchell  v.  Treasurer,  25  O.  S.  143 ; 

*  Cincinnati  Bell   Foundry  Co.   v.  Cincinnati  Gas  Light  &  Coke  Co.  v. 

Dobbs,  19  W.  L.  B.  84.  Bowman,  1  Handy,  289. 

SDarst  V.  Brockway,  11  O.  462.  "  Jones  v.  Davi^^.  35  O.  S.  474 

«  Railway  Co.  v.  Lawrence,  38  O.  S.  ^-  Mills  v.  Board,  1  C.  S.  C.  R  566. 


•eSl  INJUNCTION.  [§  681. 

without  authority  of  law.^  It  is  a  well-established  doctrine 
that  it  is  within  the  peculiar  province  of  equity  to  interfere 
and  regulate  the  use  of  and  define  and  limit  the  rights  of  dis- 
puting claimants  in  the  same  water-power  or  privilege.' 

Sec.  681.  When  it  will  not  lie. —  An  injnnction  will  not  of 
course  lie  when  there  is  an  adequate  remedy  at  law.'  A  per- 
son must  not  sleep  on  his  rights  and  then  expect  a  court  of 
equity  to  grant  him  relief.*  A  person  desiring  to  protect 
rights  by  this  remedy  must  show  himself  prompt  and  vigilant 
in  their  assertion.  He  cannot  wait  until  the  mischief  is  done 
and  great  expenditures  have  been  made  by  other  parties, 
as  it  w^ill  be  implied  that  he  acquiesces.^  Thus,  where  a  prop- 
erty owner  has  permitted  an  improvement  to  be  made  upon 
his  land  without  objection,  he  cannot  be  allowed  to  main- 
tain an  injunction  to  restrain  the  collection  of  a  tax  or  assess- 
ment levied  for  the  payment  thereof.^  But  this  rule  cannot 
apply  to  one  having  no  notice  of  the  improvement,'  nor  where 
the  law  under  which  the  improvement  is  made  is  unconstitu- 
tional;^ nor  can  the  appropriation  of  property  be  enjoined  on 
the  ground  that  compensation  has  not  been  made,  where  the 
owner  had  actual  knowledge  of  the  appropriation  proceedings 
and  failed  to  present  his  application  for  compensation.^  A 
person  who  stands  by  and  sees  property  taken  by  a  railroad 
company  without  objection  cannot,  after  a  road  has  been  con- 
structed thereon,  enjoin  the  company  from  using  the  same.^" 
An  injunction  will  be  denied  where  it  appears  that  the  plaintiff 
acquiesced  in  the  matters  complained  of."  Injunction  is  fre- 
quently resorted  to  as  a  means  of  obtaining  specific  perform- 
ance. And  while  there  is  some  conflict,  the  apparent  weight 
of  authority  sustains  the  doctrine  that  an  injunction  will  not 

1  Culbeitson   v.  Cincinnati,    16   O.  " Teegarden  v.  Davis,  36  O.  S.  601 ; 

574  Kellogg  v,   Ely,   15  O.  S.   64.     See 

2Raulet  V.   Cook,   44  N.   H.  512;  Duhnie  v.  Jones,  9  W.  L.  B.  293, 

Burnham  v.  Kempton,  44  N.  H.  78;  ^Teegai-den  v.  Davis,  fsiipra. 

Detweiler  v.  Toledo,  5  O.  C.  C.  373;  8  Wright  v.  Thomas,  L^O  O.  S.  346. 

Lembeck  v.  Nye,  47  O.  S.  336.  SReckner  v.  Warner,  22  O.  S.  275. 

3  Crocket  v.  Crocket,  2  O.  S.  180.  lOGoodia  v.  Canal  Co.,  18  O.  S.  109. 

*  Hanson  v.  Craighead,  4  W.  L.  B.  ^  Railroad   Co.   v.  Railroad  Co.,  1 

500.  O.  C.  C.  100. 

5  Chapman  v.  Railroad  Co.,  6  O.  S. 
136. 


§  681.]  INJUNCTION.  635 

issue  to  restrain  a  breach  of  a  negative  covenant,  the  effect  of 
which  would  be  to  compel  the  specific  performance  of  aflBrm- 
ative  covenants,  unless  the  affirmative  stipulation  of  the  com- 
plaining party  can  be  specifically  enforced  against  him.'  Xor 
will  specific  performance  be  compelled  where  the  benefit  of  a 
contract  cannot  be  realized  in  accordance  with  its  terms.- 

Whenever  a  court  is  called  upon  to  grant  a  mandatory  in- 
junction to  enforce  the  specific  performance  of  a  contract,  it 
will  act  with  great  caution  ;'•'  nor  will  an  injunction  lie  to  pre- 
vent a  defendant  from  violating  the  terms  of  a  contract  where 
there  is  doubt  in  reference  to  the  matter,  but  will  leave  the 
parties  to  their  remedy  at  law.*  IS'or  will  it  lie  to  control  the 
discretion  of  a  city  council,^  or  to  prevent  it  from  remov- 
ing a  market-house,  or  abandoning  a  locality  for  market  pur- 
poses ; «  nor  to  restrain  the  publication  of  an  anticipated  libel 
or  slander;^  nor  to  restrain  labor  organizations  from  the  circu- 
lation of  libels  on  the  business  or  character  of  a  merchant; a 
nor  to  prevent  the  enforcement  of  a  judgment  on  the  ground 
of  negligence  of  an  attorney,^  or  on  the  ground  that  the  case 
was  compromised  by  the  attorney  without  authority ;  i"  nor  to 
enjoin  a  nuisance  until  the  complainant  has  first  established 
his  right  to  relief  at  law."  If  the  question  as  to  whether  or 
not  a  certain  thing  is  a  nuisance  is  a  question  of  fact,  an  in- 
junction should  not  issue.^-  Nor  will  the  remedy  be  allowed 
at  the  suit  of  a  county  auditor,  after  his  term  has  expired,  to 
restrain  the  commissioners  from  appointing  a  suitable  per- 
son to  fill  a  vacancy  in  the  office ;  ^^  nor  to  prevent  the  county 

1  Steinau  v.  Gas  Co.,  48  O.  S.  524 ;  ^  Dopp  v.  Doll,  13  W.  L.  B,  335. 
Pomeroy    on    Contracts,    sec.    163;  8  Rjchter  v.  Tailors'  Union,  24  W. 
Bailey  v.  Collins,  59  N.  H.  459 ;  Pin-  L.  B.  189.     Though  this  seems  doubt- 
gle   V.  Connor,   66  Mich.    187 ;  Pub-  f  ul  under  recent  decisions.   See  ante, 
lishing  Co.  v.  TeL  Co.,  83  Ala.  498 ;  sec.  680,  p.  631,  n.  1. 

Meason  v.   Kaine,   63    Pa   St   335 ;  9  Barliorst  v.  Armstrong,  24  W.  L. 

Richmond  v.  Railway  Co.,  33  la,  423.  B.  58. 

2  Railroad  Co,  v.  Telegraph  Co.,  38  lO  Boyle  v.  Beattie,  2  C.  S.  C.  R  490. 
O-  S.  24.  11  Goodall   v.  Crofton,  33  O.  S.  271. 

8  Cincinnati  v.  Street  Railroad  Co.,  See  Gilbert  v.  Showerman,  23  Mich. 

2  W,  L.  B,  17.  448. 

*  Bryan  v.  Chyne.  22  W.  L.  B.  165.  12  Board  of  Health  v.  Purden,  14  W. 

*  Wasem  v.  Cincinnati,  2  C.  S.  C.  R.  L.  B.  215. 

^^-  "  Robbins  v.  Board,  2  O.  C.  C.  2a 

*  Gall  V,  Cincinnati,  18  O.  S.  563. 


636  INJUNCTION.  [§  681. 

commissioners  from  levying  a  tax  to  support  a  joint  sub-school 
district  established  by  the  probate  court ;  ^  nor  to  prevent  the 
removal  of  a  police  officer.- 

A  contract  for  personal  services  cannot  be  enforced  by  in- 
junction unless  the  person  sought  to  be  enjoined  is  possessed 
of  exceptional  skill  and  abilitj',  and  a  breach  thereof  would 
result  in  irreparable  injury.^  But  where  the  breach  of  a  con- 
tract is  not  disputed  an  injunction  may  issue.^  An  injunc- 
tion will  not  be  allowed  in  such  cases  to  prevent  the  defendant 
from  contracting  with  others  unless  the  contract  and  alleged 
breach  are  clear.^ 

An  alleged  threatened  obstruction  to  a  right  of  way  claimed 
by  prescription  will  not  be  enjoined  unless  it  appears  that  the 
use  has  been  adverse,  uninterrupted,  continuous  and  with  the 
knowledge  of  the  owner,  and  existing  for  a  period  of  twenty- 
one  years.**  Nor  will  injunction  lie  to  interfere  with  a  street 
railway  in  extending  its  lines  upon  the  application  of  a  per- 
son who  has  put  in  a  bid  before  a  city  council,  nor  to  compel 
the  city  council  to  accept  his  bid  because  it  is  the  lowest.^ 
]S"or  will  it  lie  to  restrain  an  execution  and  sale  of  railroad 
property,  a  portion  of  which  is  covered  by  mortgage  under  a 
judgment,  on  the  ground  that  the  same  is  needed  to  conduct 
the  business  of  the  company  and  to  enable  it  to  raise  money 
to  pay  the  interest  on  the  mortgage.*  Nor  can  an  abutting 
property  owner  enjoin  a  telegraph  company  to  prevent  it  from 
placing  additional  wires  on  poles  in  the  street  in  front  of  his 
premises.^  Nor  will  it  lie  to  prevent  a  trespass  which  may  be 
compensated  for  in  an  action  at  law ;  ^^  nor  to  prevent  one  of 
several  tenants  from  exclusively  using  certain  space  for  sign 
purposes,  when  the  one  so  using  the  same  had  prior  posses- 
sion ; "  nor  to  restrain  the  prosecution  of  criminal  proceedings.^^ 

1  Board  v.  Stuck,  39  O.  S.  259.  The  «  Young  v.  Spangler,  2  O.  C.  C.  549. 
judgment  of  a  probate  court  is  final  "  Johnson  v.  Railway  Co.,  10  W.  I* 
unless  reversed  on  error.  B.  345. 

2  Reeves  v.  Gritfin,  29  W.  L.  B.  281.  8  Coe  v.  Railroad  Co.,  10  O.  S.  412. 

3  Columbus    Base    Ball    Club    v.  >»  Wirth  v.  Tel.  Co.,  7  O.  C.  C.  290; 
Reiley,   25    W.    L.    B.   383 ;    Rogers  Railroad  Co.  v.  Tel.  Co.,  38  O.  S.  24 
Manuf  g  Co.  v.  Rogers,  56  Conn.  356 ;  lo  Bank  v.  Debolt,  1  O.  S.  591. 
Cort  v.  Lasard,  18  Greg.  221 ;  Carter  "  Law  v.  Haley,  17  W.  K  B.  242. 

V.  Ferguson.  12  N.  Y.  S.  580.  i^Crighto  v.  Dahmer.  70  Miss.  — ; 

4  Lacey  v.  Heuck,  12  W.  L.  B.  209.     s.  c,  21  L.  R  A.  84,  and  note. 

5  Bryan  v.  Chyne,  22  W.  L.  B.  165. 


§  682.]  INJUNCTION.  637 

Sec.  082.  Pleading  and  practice. —  That  courts  of  equity 
exercise  jurisdiction  of  cases  of  purpresture  and  nuisances,  and 
•of  encroachments  upon  the  public  rights,  as  upon  highways, 
rivers,  and  streets  of  towns,  is  well  settled.  It  is  predicated 
upon  the  ground  of  preventing  irreparable  injury,  interminable 
litigation,  multiplicity  of  suits  and  the  protection  of  rights.^ 
It  is  well  settled  that  the  remedy  by  injunction  cannot  be 
invoked  when  there  is  one  at  law,  but  the  remedy  at  law 
must  be  plain,  adequate  and  complete ;  it  should  be  as  prac- 
ticable and  efficient  to  the  ends  of  justice  and  its  prompt  ad- 
ministration as  the  remedy  in  equity.-  On  the  other  hand, 
to  entitle  a  plaintiff  to  an  injunction,  his  right  must  be  clear, 
the  apprehended  injury  irreparable,  its  breach  perilous.' 
Where  it  is  asked  upon  the  ground  of  apprehended  injury  to 
real  property,  facts  should  be  set  forth  showing  that  the  injury 
is  irreparable;  the  mere  statement  that  it  is  irreparable  is 
not  sufficient.^  There  must  be  an  injury  to  property,  actual 
or  prospective,  an  evasion  of  property  or  of  civil  rights,  or  an 
irreparable  injury  of  such  a  peculiar  nature  that  it  cannot  be 
remedied  at  law.^  Adhere  the  same  question  has  been  pre- 
sented to  a  court  upon  application  for  an  injunction,  another 
court  of  co-ordinate  jurisdiction  may  refuse  to  hear  the  ap. 
plication  until  decision  is  rendered  in  the  first  case.^  After 
trial  and  judgment,  upon  demurrer  or  otherwise,  an  objection 
cannot  be  made  to  an  action  for  injunction  on  the  ground 
that  an  adequate  remedy  at  law  existed." 

Under  general  allegations,  evidence  may  be  received  to  aid 
the  court  in  determining  whether  or  not  a  judgment  should 
be  enjoined.^  An  injunction  cannot  be  allowed  upon  the  peti- 
tion alone,  unless  the  same   be  sworn  to  positively.*     Where 

1  Putinan  v.  Valentine,  5  O.  187 ;  5  People  v.  World's  Fair  Columbian 
Wood  on  Nuisances,  sees.  77,  777 ;  Exposition,  34  W.  L,  B.  7  (U.  S.  Ct 
State  V.  Railroad  Co.,  36  O.  S.  434.  of  Appeals). 

2  Boyce  v.  Grundy,  8  Peters,  210.  6  Cincinatti  v.  Jackson  Light  Co., 

3  Robbins  v.  Board.  2  O.  C.  C.  23 ;  26  W.  L.  B.  104. 

Fellows  V.  Walker,  21  W.  L.  B.  390;  "Culver  v.  Rod,£rers.33  O.   S.   537; 

Walker  v.  Railroad  Co.,  8  O.  38.     See  Nicholson  v.  Pirn,  5  O.  S.  25 ;  Russell 

Putmau    V.    Valentine,     5    O.    187;  v.  Loreua.  3  Allen,  121. 

Spangler  v.  Cleveland,  43  O.  S.  526;  SMcCurdy   v.  Baughman,  43  O.  S. 

Burnham  v.  Kempton.  44  N.  H.  92.  78. 

*  Van  Wert  v.  Webster.   31   O.   S.  » Ett  v.  Snyder,  6  Am.  Law  Rec. 

420;  McKinzie  V.  Mathews.  59  Mo.  99.  415;  Atcheson  v.  Bartholow,  4  Kan. 


C38  INJUNCTION.  [§  682. 

facts  are  not  within  the  knowledge  of  the  person  making  the 
oath,  it  will  not  be  sufficient  to  warrant  the  granting  of  an 
injunction.  The  affidavit  of  a  person  giving  the  information 
should  be  furnished  and  sworn  to  in  positive  terms ;  verifica- 
tion by  an  attorney  which  does  not  state  that  he  has  personal 
knowledge  of  the  facts  will  not  be  sufficient.^  Where  the 
only  relief  sought  to  be  obtained  by  a  bill  in  equity  is  an  in- 
junction, the  same  should  contain  a  specific  prayer  for  that 
purpose.-  Upon  an  appeal  to  the  circuit  court  in  an  action 
for  injunction,  the  same  may  be  suspend  3d  for  good  cause 
until  the  case  be  heard  upon  its  merits.^  An  appeal  does  not 
lie  from  an  interlocutory  order  modifying  an  injunction.* 

The  court  may,  if  deemed  proper  that  a  defendant  should  be^ 
heard  before  granting  an  injunction,  require  reasonable  notice 
to  be  given  of  the  time  and  place  of  the  hearing  of  the  appli- 
cation,  and  may  grant  a  temporary  restraining  order  until  the 
application  can  be  heard.'  An  injunction  will  not  be  granted 
against  a  party  who  has  answered,  except  upon  notice,  al- 
though a  restraining  order  mav  be  granted  until  the  decision 
of  the  application  for  an  injunction.''  A  bond  must  be  given 
with  surety,  to  be  approved  by  the  clerk,  for  such  a  sum  as 
may  be  fixed  by  the  court  or  judge  allowing  the  order,  to 
secure  the  party  from  the  damages  he  may  sustain  if  it  be 
finally  decided  that  the  injunction  ought  not  to  have  been 
granted,^  excepting  in  a  provisional  injunction  by  the  wife  to 
prevent  the  husband  from  disposing  of  or  wasting  property, 
in  which  case  it  is  discretionary  with  the  court.^ 

Where  the  injunction  is  allowed  at  the  commencement  of 
the  action,  it  will  be  sufficient  to  indorse  the  summons  "  in- 


124 ;  Levy  v.  Ely,  15  How.  Pr.  397.  38  Md.  364 :  Primmer   v.  Patton,  33 

And  when  verified  positively  it  be-  III.  528. 

comes  for  purposes  of  injunction  an  3  McClung    v.    Coal,    etc.     Co.,     7 

affidavit     Levy  v.  Ely.  supra ;  Long  O.  C.  C.  182. 

V.  Kasbeer,  28  Kan.  226 ;  Olmsted  v.  *  Forgy  v.  Railroad  Co.,  1  O.  C.  C. 

Koester,  14  Kan.  463.  417. 

iHone  V.  Moody,  59  Ga.  731;  15  ^O.  Code,  sec.  5574 

S.  E.  Rep.  947 :  Manistique,  etc.  Co.  v.  6  o.  Code,  sec.  5575. 

Lovejoy,  55  Mich.  189.  "i  O.   Code,  sec.   5576.      And  addi- 

2  Lewiston  Falls  Mfg.  Co.  v.  Frank-  tional    security    may    be    require<L 

lin  Co.,  54  Me.  402 ;  Webb  v.  Ridgely,  R  S.,  sec.  5582. 

«  O.  Code,  sec  5705. 


§  683.]  INJUNCTION.  639' 

junction  allowed,"  without  issuing  a  formal  order.  In  many 
cases,  however,  the  order  'may  be  varied  from  the  prayer  in 
the  petition ;  and  chen  it  may  be  important  to  the  plaintiff 
that  the  defendant  fully  understand  the  order  made,  in  which 
case  it  will  be  more  desirable  to  have  a  copy  of  the  entry 
served  with  the  summons.  In  seeking  a  temporary  restrain- 
ing order,  the  entry  should  be  carefully  prepared  in  advance, 
so  as  to  show  the  court  what  is  desired,  but  more  especially 
to  save  time,  a  copy  of  which  may,  when  deemed  best,  be 
served  with  the  summons.  Service  of  the  summons,  however, 
indorsed  "  injunction  allowed,"  or  notice  of  the  application  for 
an  injunction,  will  serve  the  purpose  of  a  notice  of  its  allow- 
ance.^ But  when  the  injunction  is  allowed  during  the  litiga- 
tion, without  notice,  the  order  must  be  served  in  the  same 
manner  as  a  summons.-  An  injunction  operates  from  the 
time  the  defendant  has  notice,  and  from  the  execution  of 
the  undertaiiing  required  by  the  application.'  Upon  the  hear- 
ing of  an  application  for  an  injunction,  each  party  may  file  and 
read  atfidavits  bearing  upon  the  merits  of  the  controversy.* 
An  injunction  or  restraining  order  may  be  enforced  as  the 
act  of  the  court,  and  disobedience  punished  as  a  contempt.* 
A  defendant  may  obtain  an  injunction  upon  an  answer  in  the 
nature  of  a  counter-claim,  and  shall  proceed  as  in  other  cases.* 
Sec.  683.  Motion  to  vacate. —  A  party  may  at  any  time 
before  the  trial,  after  giving  notice  to  the  adverse  party  of  the 
time  and  place  of  hearing,  apply  to  the  court  in  which  the  ac- 
tion is  pending  or  a  judge  thereof  to  vacate  or  modify  an 
injunction.  The  application  may  be  made  upon  the  petition 
and  affidavit  upon  which  the  injunction  was  granted,  or  upon 
affidavit  on  the  part  of  either  party  enjoined,  with  or  without 
answer.^  Vacation  of  an  injunction  upon  motion  and  proof 
does  not  authorize  or  warrant  the  dismissal  of  the  petition.  The 
case  should  be  retained,  and  if  another  issue  be  shown  by  an 

1 0.  Code,  sec.  5577.  Court  of , County  —  ss. 

2  O.  Code,  sec.  5578.  John  Smith,  Plaintiff, 


3  O.  Code.  ^ec.  5579 :  Rainsdell  v.     ,  ,       ^^V^  ^     ^     .  f  ^^- ' 

/-I    •  1,11  n,v  -,no  James  Jones.  Defendant  ) 

Craighdl,  9  < ».  19a  The  State  of  Ohio, County  -S8. 

*R  S.,  isec.  5583.     Simple  sugges-  Pliilip  Roe,  being  sworn,  etc. 

tions  are  sometimes  vahiable,  so  the  5  O.  Code,  sec.  5581. 

forma]  parts  of  an  affidavit  used  in  6  q.  Code,  sec.  5586. 

injunction  proceedings  is  given :  7  o.  Code,  sec.  5584    Tlie  party  op- 


64:0  iNJUNCTioir.  L§^  084,  685. 

answer,  snch  relief  should  be  given  to  the  plaintiff  as  his  peti- 
tion shows  him  entitled  to,  without  regard  to  the  disposition 
of  the  motion  to  vacate,  which  must  of  necessity  follow  where 
the  petition  contains  a  proper  cause  of  action.^  A  judge  of 
the  supreme  court  cannot  grant  or  dissolve  an  injunction  pend- 
ing in  another  court.^  It  is  entirely  discretionary  with  the 
court  whether  or  not  it  will  grant  the  motion  to  dissolve.^ 
A  misjoinder  of  parties  plaintiff  is  not  cause  for  dissolving  an 
injunctfon.* 

Sec.  684.  Second  application  for  iiijuuction. —  No  injunc- 
tion should  be  allowed  after  a  motion  therefor  has  been  over- 
ruled by  a  court  on  the  merits  of  the  application ;  and  where 
it  has  been  refused  by  the  court  in  which  the  action  is  brought, 
it  should  not  be  granted  to  the  same  applicant  by  a  court  of 
inferior  jurisdiction  or  a  judge  thereof.^  A  refusal,  however, 
in  one  case  does  not  prevent  a  person  from  making  another 
application  in  the  same  case,*^  especially  where  new  and  ad- 
ditional matter  is  presented  upon  the  hearing  of  the  second 
application.'  "Where  the  first  application  was  refused  for  the 
want  of  material  averments,  it  is  no  obstacle  to  the  hearing 
of  a  second  application  upon  proper  amended  pleadings.^ 

Sec.  685.  Petition  to  enjoin  infringement  of  trade-mark. — 

Plaintiff  is  engaged  in  manufacturing  an  article  known  as 
[give  name],  which  he  has  sold  in  [jSfMte  lohat  it  is  and  how  sold], 
properly  labeled  with  the  following  device  and  trade-mark 
adopted  by  the  plaintiff  in  the  year  18 — ,  viz.:  [Ooj?!/  label.] 
•  That  the  business  of  plaintiff  consists  in  manufacturing  [to- 
bacco transplanters]  and  selling  directly  and  by  means  of 
agents  throughout  the  United  States,  and  that  by  reason  of 
the  excellence  of  said  \imme  article]  thus  manufactured  by  it, 
and  the  probity  of  its  officers  and  agents,  plaintiff  has  built 
up  and  controls  a  large  and  lucrative  business  in  the  sale  of 
[name  article]  throughout  the  states  of . 

That  the  defendant  is,  and  has  been  for  some  time  prior  to 
the  commencement  of  this  action,  acting  as  agent  for  the 

Company,  a  foreign  corporation,  in  the  sale  of  tobacco 

transplanters,  which  said  transplanter  is  in  many  features  and 

posing    may  also    file    counter-affi-  3  Minor  v.  Terry,  6  How.  Pr.  208. 

davits.    O.  Code,  sec.  5585.    Affidavits  *  Gill  v.  Ferris,  82  Mo.  156. 

are   competent  testimony.     Keys  v.  5  o.  Code,  sec.  5580. 

Williamson,  31  O.  S.  561.  SQIass  v.  Clark,  41  Ga.  544. 

1  Makemson  v.  Kauflfmau,  35  O.  S.  "  Blizzard  v.  Nosworthy,  50  Ga.  514. 
444  "^  Halcombe  v.   Commissioner,    89 

2  Railway  Co.  v.  Hurd,  17  O.  S.  144  N.  C.  346. 


§  (iytJ.J  INJUN'CTION.  041 

respects  similar  to  the  one  manufactured  and  sold  by  the 
plaintiff;  that  the  territory  embraced  within  the  agency  of 

defendant  comprises  [state  what] ;  that  the Company  is 

and  has  been  a  competitor  of  plaintiff,  having  its  principal 
office  at . 

That  plaintiff  has  adopted  and  used  the  name  of  "Bemis  " 
to  distinguish  its  transplanter  from  other  transplanters,  which 
name  had  not  theretofore  been  used  by  any  other  person  as 
a  trade-mark  [here  may  he  stated  facts  shoioing  establishment  of 
samel ;  and  by  reason  of  the  facts  aforesaid  plaintiff  acquired 
the  exclusive  ri^ht  to  use  said  name ;  that  by  reason  of  the 
excellence  of  said  article  it  has  acquired  a  great  reputation 
and  plaintiff  derives  great  profits  from  the  sale  thereof. 

That  the  defendant,  together  with  the Company  and 

other  persons,  have  conspired  to  defraud  and  injure  plaintiff 
and  deprive  it  of  the  market  which  it  has,  by  the  defendant 

as  agent  for  the Company  making  and  seeking  to  make 

sales  of  transplanters  manufactured  by  the  Company, 

under  the  name  of  the  "  New  Bemis  Transplanter,"  and  by 
defendant  representing  to  the  trade  throughout  the  territor}' 

covered  by  his  said  agency  for  said Company,  that  the 

said  transplanters  manufactured  by  the Company  are  the 

said  Bemis  transplanters  manufactured  by  plaintiff.  [Other 
acts  of  agent  and  company,  as  to  circulars,  catalogues,  etc.,  may 
he  set  oztt.'] 

[Prayer.l 

Sec.  686.  Petition  to  enjoin  a  nuisance  caused  by  noise. — 

Plaintiff  is  the  owner  in  fee-simple  of  the  following  de- 
scribed premises  situate  in  the   cit}'-  of  county,  Ohio: 

[Descr the  p rein  ises.] 

Plaintiff'  has  built  upon  said  lot  a  residence  which  he  now 

occupies  and  has  occupied  as  such  since  the day  of , 

18—. 

That  on  the day  of ,  18 — ,  defendant  bought  the 

premises  next  to  jilaintiff's  residence,  upon  which  he  has 
erected  a  factory  for  the  purpose  of  manufacturing  boilers, 
and  has  been  ever  since  the  erection  of  said  factory,  and  now 
is,  engaged  in  the  business  of  manufacturing  boilers. 

That  said  defendant  uses  in  said  factor}'^  a  certain  machine 
called  [name  it],  which  makes  such  a  noise  that  it  greatly  in- 
terferes with  phiintiff  and  members  of  his  family  in  his  dwell- 
ing-house, by  making  it  difficult  to  engage  in  conversation  and 
otherwise  causing  great  inconvenience  and  injury  [state  any 
particulars']. 

That  on  the  day  of  ,  18 — ,  and  repeatedl}'^  since 

that  date,  plaintiff  notified  defendant  that  the  noise  arising 
from  the  [name  machine]  was  so  great  that  it  greatly  dis- 
turbed ])laintiff  in  his  said  dwelling,  and  asked  that  he  en- 
deavor in  some  way  to  prevent   making  said  noise,  but  that 

41 


642  ixj UNCTION.  [§§  667,  6S8. 

he  wholly  failed  and  refused  so  to  do,  and  said  noise  still  con- 
tinues. 

Plaintiff  therefore  asks  that  the  court  grant  a  temporary 
restraining  order  against  said  defendant,  restraining  him  from 
using  said  machine  and  from  making  said  noise,  and  tliat  upon 
the  final  hearing  of  this  cause  he  may  be  perpetually  enjoined 
from  so  doing. 

Note. —  The  burden  is  upon  the  plaintiflF  asking  for  a  perpetual  injunc- 
tion.    Spangler  v,  Cleveland,  43  O.  S.  526. 

Sec,  687.  Petition  to  enjoin  operation  of  a  slaughter- 
house.— 

[Caption  and  formal  averments  as  in  ante,  sec.  686.'] 

On  the day  of ,  18 — ,  defendant  purchased  a  lot 

adjoining  plaintiff's  residence  in  the  city  of ,  Ohio,  and 

immediately  constructed  a  slaughter-house  thereon.  That  de- 
fendant has,  since  the  erection  of  said  slaugiiter-house,  con- 
stantly been  engaged  in  tlie  business  of  killing  and  butchering 
hogs,  sheep  and  cattle,  for  the  market.  That  defendant's  said 
business  is  so  offensive  by  reason  of  a  stench  which  constantly 
arises  from  his  said  slaughter-house  because  of  killing  and 
butchering  of  said  animals,  and  because  of  the  further  fact 
that  defendant  does  not  properly  conduct  said  business  so  as 
to  prevent  said  stench,  that  the  same  has  become  a  nuisance 
and  renders  plaintiff's  said  dwelling-house  uninhabitable. 
\^Prayer.'\ 

Sec,  688.  Petition  to  enjoin  waste  and  for  damages. — 

Plaintiff  is  now  and  has  since ,  IS—,  been  the  owner  in 

fee-simple  of  the  following  described  premises  situate,  etc. : 
[^Description.] 

On  the day  of ,  18—,  plaintiff  leased  said  premises 

to  the  defendant  for  a  term  of  years,  to  begin  on  the 

day  of ,  18 — ,  and  end  on  the day  of -,  18—, 

by  virtue  of  which  lease  said  defendant  took  possession  and 
now  occupies  said  premises  as  tenant  of  this  plaintiff.  That 
on  or  about  the day  of ,  18 — ,  the  defendant  wrong- 
fully cut  down  [state  the  waste  committed]  on  said  premises 

belonging  to  plaintiff,  of  the  value  of  % ,  and  has  otherwise 

greatly  injured  said  estate,  to  the  damage  of  the  plaintiff  in 
the  sum  of  8 . 

That  the  defendant  threatens  and  is  about  to  and  will,  un- 
less restrained  by  order  of  this  court,  further  injure  said  prem- 
ises by  [state  how]. 

Plaintiff  therefore  asks  for  a  temporary  order  of  injunction 
restraining  the  defendant  from  [state  acts  to  he  enjoined]  until 
the  final  hearing  of  the  case,  and  that  upon  such  final  hearing 
said  injunction  may  be  made  perpetual,  and  that  the  plaintitl' 


§§  689,  690.]  INJUNCTION.  643 

recover  from  the  defeiidar\t  the  sum  of  $ ,  his  damages  in 

the  premises,  and  for  such  other  relief  as  is  just  and  equitable. 

Note. —  The  interest  of  plaintiff  must  be  clearly  set  forth.  Crockett  v, 
Crockett,  2  O.  S.  181. 

Sec.  689.  Petition  to  enjoin  partner  from  engaging  in 
bnsiness  after  dissolution  of  partnership  contrary  to  agree- 
ment.— 

That  on  the day  of ,  18 — ,  plaintiff  and  defendant 

formed  a  partnership  for  the  purpose  of  carrying  on  the  busi- 
ness of  [state  vjhaf]  at ,  in  the  city  of ,  county  of , 

and  state  of  Ohio. 

That  said  partnership  continued  until  the day  of , 

18 — ,  when  it  was  mutually  dissolved. 

That  by  the  articles  of  copartnership  it  was  expressly  stipu- 
lated and  agreed  that  in  case  of  a  dissolution  of  the  tirm 
neither  of  the  partners  should  continue  to  carry  on  business 
in  the  store  occupied  by  the  firm  unless  by  consent  of  the 
other. 

That  said  defendant,  in  violation  of  said  agreement,  has  now 

commenced  and  is  carrying  on  said  business  at  No. , 

street,  in  said  city,  without  the  consent  and  against  the  objec- 
tions of  plaintiff  and  wholly  in  violation  of  their  said  agree- 
ment. 

That  the  plaintiff  has  duly  performed  all  the  conditions  of 
said  agreement  on  his  part,  and  is  now  carrying  on  said  busi- 
ness at  No. , street,  in  said  city,  but  is  greatly  injured 

by  the  aforesaid  wrongful  acts  of  the  defendant  [state  the  in- 
jury]. 

That  the  acts  committed  by  said  defendant  in  violation  of 
their  said  agreement  aforesaid  is  a  great,  irreparable  and  con- 
tinuing injury  to  plaintiff's  business,  and  cannot  be  measured 
by  damages. 

Plaintiff  therefore  prays  that  the  defendant  and  his  agents 

may  be  restrained  from  carrying  on  said  business  at [state 

where'],  or  from  advertising  or  announcing  that  such  is  his  place 
of  business,  and  for  such  other  relief  as  is  just  and  equitable. 

Note. —  Changed  from  Thornton's  Format 

Sec.  690.  Petition  to  enjoin  judicial  sale  of  real  estate. — 

Plaintiff  is  the  owner  in  fee-simple  of  the  following  de- 
scribed real  estate,  to  wit :  [Here  describe  the  land.] 

That  on  the day  of ,  18 — ,  the  defendant  C.  D.  ob- 
tained a  judgment  in  the  [na/ne  of  the  court  where  the  judg- 
ment was  rendered]  against  E.  F.  for dollars  and  costs. 

That  an  execution  has  been '  issued  on  said  judgment,  at 
the  instance  of  the  said  C.  D.,  and  placed  in  the  hands  of  the.- 


Gii  INJUNCTION.  [§  691. 

said  G.  II.,  who  is  the  acting  sheriff  of county,  state  of 

Ohio. 

That  said  defendant  G.  H.,  on  the day  of ,  18 — , 

under  said  writ  of  execution,  levied  upon  the  real  estate  above 
described  as  the  property  of  said  E.  F.,  and  has  advertised  the 
same  for  sale  on  said  execution, 

Tliat  the  said  judgment  is  not,  and  at  no  time  has  been,  a 
lien  upon  said  real  estate,  or  upon  an}'^  part  thereof,  or  upon 
any  interest  therein. 

That  a  sale  of  said  property  under  said  execution  would 
create  a  cloud  upon  the  plaintiff's  title  thereto,  and  the  plaint- 
iff is  and  Avill  be  romediless  at  law  to  remove  such  cloud. 

AYherefore  the  plaintiff  prays  that  a  temporary  injunction 
be  issued  to  restrain  said  execution  sale,  and  enjoining  and 
restraining  said  plaintiff  from  enforcing  said  judgment  against 
said  real  estate,  and  that  on  final  hearing  said  injunction  be 
made  perpetual,  and  for  such  other  and  further  relief  as  shall 
be  adjudged  equitable  in  the  premises,  and  for  costs. 

Sec.  691.  Petition  to  enjoin  sale  of  exempt  property 
under  execution. — 

The  plaintiff,  for  his  cause  of  action  against  A.  B.,  says: 

That  on  the day  of ,  18 — ,  he  purchased  from  A.  B. 

a  house  and  lot,  No. ,  in  the  city  of ,  county  of , 

Ohio,  and  on  the  same  day  made  and  delivered  to  the  said 
A.  B.  a  mortgage  on  said  premises  to  secure  a  note  made  by 
.plaintiff  for  the  sum  of  $ . 

That  the  said  A.  B.,  in  a  proceeding  to  foreclose  said  mort- 
gage in  the  court  of  common   pleas  in  county,  Ohio, 

wherein  the  said  A.  B.  was  plaintiff,  and  this  plaintiff  was  de- 
fendant, on  the  day   of  ,  18 — ,  obtained   a  decree 

against  this  plaintiff  for  the  sum  of  $ ■,  and  costs,  to  be 

paid  within  ten  days  from  the  date  of  the  entry  of  said  de- 
cree, and  in  default  of  such  payment  that  this  plaintiff's  equity 
of  redemption  be  foreclosed  and  said  premises  be  sold,  and 
that  an  order  of  sale  issue  therefor  to  the  sheriff  of  — — 
county,  Ohio,  directing  him  to  advertise  and  sell  said  premises 
as  upon  execution. 

But  plaintiff  further  says  that  the  said  defendant  A.  B., 
without  procuring  an  order  of  sale  to  be  issued  in  said  fore- 
closure proceedings,  caused  to  be  issued  therein  an  execution 

directed  to  the  sheriff  of county,  Ohio,  commanding  him 

that  of  the  goods  and  chattels  of  this  plaintiff  C.  D.,  the 

amount  of  said  judgment,  to  wit,  $ ,  so  rendered  in  said 

proceedings  aforesaid,  be  made.  That  in  pursuance  of  said 
execution  said  sheriff  has  made  a  levy  upon  the  property  of 
this  plaintiff,  to  wit,  a  portable  saw-mill,  ftow  located  and 
operated  by  plaintiff  at  W.  in  said  county,  and  said  sheriff 
is  proceeding  to  sell  and  will  sell  said  property  unless  re- 


^  6Ji    J  iNjuxcTiox.  645 

strained  by  order  of  this  court  from  so  doing.  Plaintiff  states 
that  he  is  not  the  o^vner  of  a  homestead  and  does  not  occapy 
the  said  premises  hereinbefore  described  involved  in  said  fore- 
closure proceedings,  and  is  therefore  entitled  to  claim*  prop- 
erty of  the  value  of  $ in  lieu  of  his  homestead  exemption, 

and  at  the  time  of  the  levy  of  said  execution,  as  aforesaid,  by 
said  sheriff  upon  said  mill  property,  plaintiff  demanded  of 
said  officer  that  the  same  be  set  off  to  him  in  lieu  of  a  home- 
stead, which  demand  said  sheriff  refused,  and  he  thereby 
failed  and  refused  to  allow  this  plaintiff  to  retain  said  prop- 
erty as  exempt;  and  jilainiiff  states  that  the  fair  and  reason- 
able value  of  said  property  is  not  more  than  the  sura  of  $500. 

[Or,  That  on  the day  of  ,  18 —  {prior  to  date 

of  judgment  and  decree;  or  even  after  may  have  same  effect), 
this  plaintiff  abandoned  said  premises  and  ceased  to  occupy 
the  same  as  a  homestead,  and  thereby  became  entitled  to 
claim  {continue  form'^y^. 

Said  defendant  so  sued  out  said  execution  against  this 
plaintiff  and  caused  the  same  to  be  levied  upon  plaintiff's  per- 
sonal property,  instead  of  proceeding  under  the  order  for  the 
sale  of  said  r-eal  estate  .as  aforesaid,  for  the  sole  purpose  of 
preventing  this  plaintiff  from  claiming  his  exemption,  to 
which  under  the  law  he  was  entitled. 

Wherefore  plaintiff  prays  that  a  temporary  order  may 
issue  restraining  said  defendant  from  proceeding  under  his 
said  levy  to  sell  said  exempted  property,  without  allowing 
plaintiff  to  claim  his  exemption,  and  that  upon  a  final  hear- 
ing of  this  cause  said  defendant  praj'^s  that  said  injunction  be 
made  peri)etual  and  for  all  proper  relief. 

Note. —  Purposes  of  exemjition  laws.  Kettle  v.  Newcoinb,  22  N.  Y.  252; 
Franklin  v.  Coffee,  18  Tex.  413.  Tliey  are  liberallv  construed.  104  Ind. 
255;  126  111.  259;  44  Am.  Rep.  280;  TO  Am.  Dec.  219;  91  Ind.  384;  46  Am. 
Rep.  607. 

See.  091  a.  Petition  to  restrain  strikers  from  interfering 
with  bnsiness. — 

Plaintiff  states  that  it  is  a  partnership  formed  for  the  juir- 
pose  of  doing  bnsiness  in  Ohio,  and  is  engaged  in  the  manu- 
facture and  sale  of  saddles  and  harness ;  that  it  has  a  large 
capital  invested  in  said  business,  and  the  successful  operation 
thereof  recpiires  it  to  employ,  and  it  does  employ  therein,  a 
large  number  of  workmen. 

Plaintiff  states  that  on  the day  of ,  18 — ,  many  of 

its  said  employees  went  out  on  a  strike,  and  refused  and  still 
refuse  to  ])erform  their  accustomed  work,  without  any  just 
cause  therefor. 

That  the  defendants  and  each  of  them  have  entered  into  an 
unlawful  conspiracy  among  themselves  and  divers  other  per- 
sons unknown  to  plaintiff  to  embarrass  and  annoy  plaintiff  in 
its  said  business  and  in  the  conduct   thereof,  and  to  stop  and 


6iG  INJUNCTION.  [§  0915. 

destroy  the  same,  and  to  deprive  it  of  and  drive  away  its  em- 
ployees; that  said  defendants  are  activelv  seeking  to  accom- 
plish this  result,  and  are  embarrassing  and  threatening  its 
said  emploj^ees  and  to  force  them  to  abandon  their  work,  and 
to  prevent  them  and  others  from  remaining  in  and  from  en- 
tering plaintiff's  employment,  and  have  assaulted  and  beaten 
many  of  its  said  employees  in  their  attempts  to  so  prevent 
them  from  performing  the  duties  of  their  said  employment. 
That  defendants  are,  by  acts  and  threats  of  intimidation, 
frightening  and  have  frightened  many  of  its  employees  from 
remaining  in  its  employ,  as  well  as  preventing  others  from  en- 
tering therein,  and  said  defendants  have,  by  reason  of  their 
said  unlawful  conduct,  greatly  hampered  and  destroyed  plaint- 
iff's business,  and  will  so  destroy  and  ruin  plaintiff's  business 
unless  restrained  by  order  of  this  court. 

That  by  reason  of  the  unlawful  conduct  and  acts  of  con- 
spiracy of  said  defendants  aforesaid,  plaintiff  is  prevented 
from  properly  ccmducting  its  said  business,  and  is  unable  to 
fill  contracts  undertaken  by  it,  and  unless  defendants  are  so 
restrained  from  the  commission  of  their  said  unlawful  acts  of 
conspiracy  against  plaintiff  it  will  suffer  great  and  irreparable 
loss  and  injury,  which  cannot  be  measured  in  damages,  be- 
cause said  defendants  are  wholly  irresponsible  and  without 
property  and  unable  to  respond  in  damages,  and  plaintiff  is 
therefore  without  remedy  at  law. 

Plaintiff  therefore  asks  that  the  defendants  and  each  of  them 
be  restrained  from  in  any  way  harassing  or  interfering  wiih 
plaintiff  in  its  said  business,  and  from  harassing  or  threatening 
or  frightening  those  persons  desiring  to  enter  the  employ  of 
plaintiff,  and  from  assaulting  them,  or  from  inducing  others 
to  attempt  to  do  the  same;  and  that  upon  a  final  hearing  a 
decree  for  a  perpetual  injunction  restraining  defendants  from 
the  aforesaid  acts  may  be  granted,  and  for  such  other  and 
further  equitable  relief  as  may  seem  proper. 

Note.— See  ante,  sec.  680,  p.  631,  n.  1,  2.  Perkins,  C.  &  Co.  v.  Rogg,  27 
W.  L.  B.  32.  Woiknien  may  lawfully  combine,  aDcl  may  by  reasonable 
argument  persuade  others  to  quit  work,  but  cannot  do  so  by  intimidation. 
Equity  will  protect  property  whether  the  interference  therewith  is  con- 
nected with  crime  or  not.  Perkins,  R.  &  Co.  v.  Rogg,  sitpra.  See  State  v. 
Buchanan,  5  Harr.  &  J.  (Md.)  317;  Ray  on  Contractual  Lim.  378,  and  cases 
cited.  Strikes  are  not  necessarily  illegal.  Farrer  v.  Close,  L.  R.  4  Q.  B.  612. 
Even  though  the  acts  of  striking  workmen  may  be  punishable  by  the  crim- 
inal law,  yet  equity  will  restrain  them  if  their  acts  tend  to  the  destruction 
of  property.  Springhead  Spinning  Co.  v.  Riley,  L.  R.  6  Equity  Cases,  557. 
Injunction  will  lie  to  prevent  labor  unions  and  their  members  from  enter- 
ing upon  or  interfering  with  property.  Coeur  D'Alene  Con.  &  Mining  Co. 
▼.Miners'  Union,  25  Chic.  Leg.  News,  41  (U.  S.  Circuit  Ct.  Dist.  Idaho). 

Sec.  691b.  Petition  to  enjoin  railroad  strikers.— 

Plaintiff  is  a  corporation  duly  incorporated  and  organized 
and  existing  under  and  by  virtue  of  the  laws  of  the  state  of 
,  and  owns  and  operates  a  line  of  railway  extending  from 


§  691^*.]  ixjL-NCTiox.  G47 

to [describe  such  part  of  the  line  of  railway  as  may 


he  desired],  and  has  in  -^ counties  numerous  branches,  and 

connects  with  other  railways  in  mail,  express,  and  other  busi- 
ness between  said  cities  of and . 

That  plaintiff  has  a  contract  to  carry  promptly  freight  con- 
signed to  its  charge  as  such  common  carrier,  and  to  make  de- 
livery thereof  to  the  several  consignees  at  all  stations  and 
points  named  on  its  line  within  and  outside  of  the  state,  and 
has  other  contracts  to  transport  passengers,  the  United  States 
mail,  and  ex|)ress  business,  from  and  to  the  said  several  cities, 
villages  and  points  upon  its  said  railway  both  within  and  out- 
side of  said  state,  and  does  a  large  interstate  business ;  that 
for  the  safe  and  prompt  transportation  and  delivery  of  said 
passengers,  freight  and  United  States  mail,  it  is  essential  that 
plaintiff  should  run  its  trains  according  to  a  schedule  made 
and  designed  by  plaintiff  for  the  safety  of  passengers  and  the 
prompt  carriage  of  mails  and  passengers  according  to  its 
contract. 

Plaintiff  states  that  the  defendants  herein  were  employees 
of  plaintiff  in  the  capacity  of  yardmen,  conductors,  brakemen 
and  switchmen,  engaged  in  [state  wliere\  which  yards  were 
and  have  been  operated  by  plaintiff  as  part  of  its  railway; 

that  defendants,  each  and  every  one  of  them,  on  the day 

of ,  18 — ,  went  out  on  a  strike,  so  called,  and  thereafter 

refused  and  continue  to  refuse  to  perform  their  accustomed 
labor  and  duties  under  their  previous  employment;  that  de- 
fendants, with  others  whom  it  is  now  impossible  to  name,  have 
conspired  and  combined  for  the  unlawful  purpose  of  prevent- 
ing plaintiff  from  moving  freight  cars,  passenger  and  mail 
cars,  and  from  fulfilling  its  said  contracts  with  its  shippers, 
consignees,  and  the  United  States  government;  and  that  de- 
fendants have  stopped  and  delayed  cars  containing  freight  at 

the  cit}^  of ,  and  at  sundry  other  places  on  its  said  line  of 

railway,  and  are  preventing  plaintiff  from  performing  its  du- 
ties as  a  common  carrier  under  the  laws  of  the  state  of ; 

that  by  threats  and  intimidations  against  its  officers  and  em- 
ployees, and  those  whom  plaintiff  is  now  employing  to  con- 
duct its  business  and  operate  its  trains ;  that  defendants  have 
already  stopped  almost  entirely  the  necessary  handling, 
switching  and  movement  of  freight  cars  of  plaintiff  in  its 

yards  at ,  and  the  movement  of  freight  cars  and  trains 

upon  its  railway,  and  have  delayed  its  passenger  trains,  and 
have  thereby  compelled  plaintiff"  to  run  them  without  a  sched- 
ule, thereby  endangering  the  safety  of  its  })assengers  and  the 
prompt  carrying  of  the  mails  thereon. 

\Pr^  Tiiat  defendants  have  stopped  in  its  said  yards  at 

large  quantities  of  freight  of  various  kinds  belonging  to  its 
customers  and  consignees,  wiiicli  is  of  a  perishable  nature,  the 
value  of  which  is  materially  affected  by  the  change  of  market, 


Q4:S  INJUNCTION.  [§  ijdlb. 

all  of  which  is  so  stopped  and  delayed  in  said  yards,  and  the 
movement  thereof  {prevented  by  said  defendants  and  each  of 
them,  to  the  great  antl  irreparable  loss  and  damage  of  plaintiff 
and  its  customers  and  the  owners  and  consignees  thereof; 
that  such  and  all  such  delays  in  the  handling  of  such  freight 
generally  brings  plaintiff  under  great  danger  of  claims  for 
damages  for  breaches  of  contracts,  violations  of  contracts  with 
the  general  government  and  the  state  government  and  in- 
numerable litigations  concerning  the  same.] 

Plaintiff  further  states  that  many  of  plaintiff's  employees 
are  ready  and  willing  to  continue  their  duties  as  such  em- 
ployees, and  that  other  men  stand  ready  and  willing  to  enter 
its  employment  and  perform  the  duties  necessary  to  its  busi- 
ness, but  tliat  defendants  and  each  of  them,  by  threats,  in- 
timidation and  threatened  forcible  prevention  thereof,  are 
keeping  said  men  from  so  entering  the  employ  of  plaintiff; 
that  defendants  declare  and  threaten  that  plaintiff  shall  not 
be  permitted  or  allowed  to  have  the  benefit  of  the  services  of 
said  men  to  move  any  freight  trains  or  other  trains  what- 
ever until  plaintiff  shall  have  agreed  and  bound  itself  to  cer- 
tain unreasonable,  unlawful  and  illegal  demands  made  by  them 
for  a  certain  schedule  of  wages  and  the  payment  of  increased 
wages  to  defendants,  and  many  illegal  unreasonable  condi- 
tions, requirements  and  demands,  concerning  which  plaintiff 
and  defendants  have  been  unable  to  a^ree;  that  plaintiff,  by 
reason  of  said  unlawful  threats  and  intimidation  upon  its  said 
employees  and  those  willing  to  enter  its  employment,  is  de- 
layed, hindered  and  prevented  from  performing  its  duty  as  a 
common  carrier  and  the  accomplishment  of  its  lawful  business 
as  such  corporation,  and  is  suffering  great  and  irreparable 
damage  and  loss  to  its  business,  profits,  proi)erty  and  duties  as 
such  common  carrier  by  reason  of  the  aforesaid  unlawful  acts, 
intimidation  and  threats  of  said  defendants  and  each  of  them. 
That  the  consignees  and  shippers  of  freight  over  plaintiff's 
said  railway  are  likewise  suffering  great  and  irreparable  loss 
and  damaged  by  reason  of  said  acts,  threats,  intimidations  and 
conspiracy  of  said  defendants  and  each  of  them,  as  iiforesaid. 
[Any  other  special  facts  or  circumstances  as  above  illustrated 
niaij  he  given.] 

That  plaintiff  is  wholly  without  any  remedy  at  law  or  other- 
wise unless  this  court  will  forthwith,^  by  its  restraining  order 
and  injunction,  restrain  and  prohibit  defendants  and  each  of 
them  from  the  aforesaid  unlawful  acts. 

Plaintiff  therefore  prays  that  this  honorable  court  do  order 
and  command  defendants  and  each  of  them  to  keep  off  the 
premises,  lands,  yards  and  right  of  way  of  the  plaintiff,  and 
to  forbid  and  restrain  them  and  each  o'^f  them  from  interfer- 
ing with,  from  disabling  or  in  any  way  rendering  unfit  for 
infmediate  use  its  engines,  tenders,  cars,  switches,  couplings, 


§  691.]  iNJuxcTioN.  649 

engine-houses,  water-tanks  or  other  property  of  plaintiff; 
to  forbid  and  restrain  them  and  each  of  tlieiii  from  molest- 
ing, threatening  or  in  any  manner  hindering  any  of  its 
employees  by  any  acts  or  violence  or  by  intimidations, 
threats  or  otherwise  in  the  full  and  complete  possession  and 
management  of  its  railway,  and  from  discharging  their  duties 
and  employment  under  plaintiff,  and  from  interfering  with 
any  property  in  the  custody  of  plaintiffs  whether  belonging  to 
it,  shippers  or  other  owners,  or  from  interfering  or  otherwise 
injuring  or  inconveniencing  or  delaying  passengers  trans- 
ported or  about  to  be  transported  over  its  line  of  railway,  or 
from  interfering  in  any  manner  by  acts  of  violence  or  threats, 
preventino-  or  endeavoring  to  prevent  the  shipment  of  freight, 
or  the  transportation  of  mail  of  the  United  States,  over  the 
railway  operated  by  plaintiff  at  any  place  whatever,  and  par- 
ticularly at  any  place  within  the  said  city  of  ,  or  county 

of  ,  in  the  state  of  Ohio;  that  on  the  final  hearing  of 

this  action,  said  defendants  and  each  of  them  may  be  per- 
petually enjoined  from  doing  any  of  the  acts  complained  of 
as  aforesaid,  and  for  all  other  and  further  relief  to  which  in 
equity  it  is  now  or  hereafter  shall  be  entitled. 

Note. —  See  ante,  spp.  680,  p,  631,  note  1,  and  cases  cited. 

General  remarl:s. —  This  has  proved  to  be  a  very  effective  remedy  by  ob- 
taining a  temporary  restraiuing  order  and  punishing  those  guilty  of  vio- 
lating it  as  for  contempt,  which  may  easily  be  done,  because  in  contempt 
proceedings  in  such  cases  a  rule  prevails  that  the  merits  of  the  order  cannot 
be  inquired  into.  This  does  not  appear  to  be  a  substantial  remedy  when 
such  a  course  is  taken,  because  the  merits  of  the  case  may  never  be  inquired 
into,  and  it  may  not  be  intended  that  the  same  shall  be  inquired  into.  The 
wide  scope  of  recent  cases  has  been  quite  effective,  but  the  precedent  has 
not  been  established  by  a  court  of  last  resort.  It  is  perfectly  pioper  that 
all  unlawful  trespasses  and  interferences  by  strikers  (Railroad  Co.  v.  Wen- 
ger,  17  W.  L,  B.  306)  by  force  and  intimidation  should  be  prevented,  when 
a  cause  of  action  is  fairly  stated,  and  the  rights  of  both  plaintiff  and  strik- 
ers are  properly  tested.    See  ch.  9,  sec.  33  et  seq.,  of  Cogley  on  Strikes. 


CHAPTER  47. 


INNKEEPERS  —  HOTELS. 


Sec.  693.  Inn  defined. 

693.  Duties  and  liabilities  of  inn- 

keeper. 

694.  Petition  against  hotel-keeper 

for  loss  of  guest's  goods. 

695.  Petition  against  hotel  pro- 

prietor for  loss  of  watch 
and  chain  from  guest's 
room. 


Sec.  696.  Petition  againsthotel-keeper 
for  refusal  to  receive 
guest. 
697.  Answer  that  guest  failed  to 
comply  with  rules  and 
lost  property  by  his  own 
negligence. 


Sec.  692.  Inn  deflned. —  An  inn  is  a  house  which  is  held 
out  to  the  public  as  a  place  where  all  transient  persons  who 
come  will  be  received  and  entertained  as  guests  for  compen- 
sation. The  distinction  between  a  hotel  or  inn  and  a  board- 
ing-house is,  that  in  the  former  the  general  public  are  invited, 
and  in  the  latter  there  is  a  previous  agreement  for  accommo- 
dation for  a  certain  length  of  time.'  An  owner  of  an  apart- 
ment hotel  is  not  an  innkeeper,  and  is  not  therefore  liable  to 
a  tenant  occupying  a  suite  of  rooms  as  is  an  innkeeper.^ 

Sec,  693.  Duties  and  liabilities  of  innkeeper.—  To  create 
liability  on  the  part  of  a  hotel-keeper,  a  person  who  has  suf- 
fered loss  of  property  must  necessarily  sustain  the  relation 
of  guest  at  the  time  of  loss.  That  he  may  be  regarded  as  a 
guest  it  must  appear  that  he  visited  the  hotel  for  the  purpose 
'which  the  common  law  recognized  as  the  purpose  for  which 
inns  are  kept.  He  must  require  the  present  entertainment 
and  accommodation  of  the  inn,  and  cannot  be  regarded  as  a 
guest  if  he  merely  deposits  money  or  other  articles  for  safe- 
keeping.'   The  person  must  be  received  as  a  guest  and  not  as 


1  Fay  V.  Improvement  Co.,  93  CaL 
253 ;  s.  c,  28  Pac.  Rep.  943 ;  26  Paa 
Rep.  1099.  See  Moore  v.  Develop- 
ment Co.,  26  Pac.  Rep.  92;  87  Cal. 
483  (1891). 


2  Davis  V.  Gray,  141  Mass.  531 ;  6 
N.  E.  Rep.  549. 

3  Arcade  Hotel  Co.  v.  Wiatt,  44 
O.  S.  32.  See  Story's  Bailm.,  sec.  477; 
Rex  V.  Luellen,  12  Mod.  445;  Queen 


:§  693.J  INXKEEPEKS HOTELS.  651 

an  ordinary  boarder.^  The  relation  of  guest  and  innkeeper 
does  not  arise  where  a  person  goes  to  a  hotel  and  merely 
leaves  his  baggage  by  consent  of  the  latter,  and  does  not  en- 
gage a  room  or  eat  or  drink  there.^  The  relation  of  boarder 
instead  of  guest  does  not  arise  by  fixing  the  price  to  be  paid.^ 
The  landlord  must  derive  some  profit,*  and  the  innkeeper 
must  have  been  acting  as  such  at  the  time  the  goods  whose 
owner  becomes  a  guest  are  received,*  An  innkeeper  is  under 
no  obligation  to  receive  goods  from  a  person  merely  for  de- 
posit.^ AH  persons  are  entitled  to  full  and  equal  enjoyment 
of  the  accommodation  of  inns  J  An  innkeeper  is  bound  to 
take  care  of  goods,  money  and  baggage  of  his  guest,  and  is 
liable  for  the  acts  of  his  servants  as  well  as  other  persons 
coming  into  his  house  as  guests  or  otherwise;'*  and  is  pi^ima 
facie  liable  for  loss  or  injury  to  the  goods  of  his  guests  which 
is  not  occasioned  by  the  act  of  God,  public  enemy  or  fault  of 
the  guest.  It  is  not,  therefore,  necessary  in  an  action  for  the 
loss  of  goods  to  allege  any  carelessness  on  the  part  of  the  inn- 
keeper.** 

Bnt  the  common-law  liability  of  innkeepers  has  been  modi- 
fied by  statute.  If  an  innkeeper  has  a  suitable  safe  or  vault 
for  the  purpose  of  safely  keeping  articles  which  a  guest  may 
desire  to  leave,  and  posts  notice  to  that  effect  in  the  office 
or  on  the  inside  of  the  door  of  sleeping-rooms,  he  will  not  be 
liable  for  the  loss  of  any  article  suffered  by  a  guest,  unless  the 

V.  Rymer,  L.  R  3  Q.  B.  D.  136 ;  Wall-  Potter,  35  Conn.  183 ;  Hall  v.  Pike,  100 

ing  V.  Potter,  35  Conn.  183 ;  Healy  v.  Mass.  495.     The  relation  of  guest  and 

Gray,  68  Me.  489 ;  Lusk  v,  Belote,  22  innkeeper   is   terminated   when   the 

Minn.  468.  former  pays  his   bill  and  leaves  the 

1  Singer  Mfg.  Co.  v.  Miller,  55  N.  W.  hotel.  O'Brien  v.  Vaill,  32  Fla,  637. 
Rep.  56  (Minn..  1893).  And   if  he  cliecks   his   baggage  for 

2  Toub  V.  Schmidt,  60  Hun,  409.  safe-keeping  after   payment  of  his 

3  Hancock  v.  Rand,  94  N.  Y.  1 ;  46  bill  and  the  same  is  lost,  there  is  no 
Am.  Rep.  112;  Mowers  V.  Fethers,  61  liability  on  the  part  of  the  inn- 
N.  Y.  34;  19  Am.  Rep.  844.  keeper.     Glenn   v.  Jackson,  93  Ala. 

4  Wharton  on  Innkeepers,  p.   76;  343;  9  So.  Rep.  259  (1891). 

Lynar  v.  Massop,  36  Q.  B.  Up.  Can.  8  Prescott  v.  Bruce,  3  C,  S.  C.  R  Sa 

330.  9  Bowell   V.  De  Wald,  2  Ind.  App. 

5  Carter  v.  Hobbs,  13  Mich.  53.  303;  38  N.  E.  Rep.  430.     The  failure 
•'Wharton  on   Innkeepers,  p.   76;  of  the  guest  to  inform  the  innkeeper 

Matteer  v.  Brown,  1  Cal.  221.  or   his  servant  that  his  valise  cou- 

'R  S.,  sec.  7913 — 69.  A  resident  tains  valuables  does  not  constitute 
may   become  a    guest.     Walling  v.     negligence.     Id. 


652  '  INNKEEPERS HOTELS.  [§693.. 

guest  has  offered  to  deliver  the  property  to  the  innkeeper  for 
custody  and  the  innkeeper  has  refused  oi'  omitted  to  take  it 
and  deposit  it  for  safe-keeping;  but  an  innkeeper  is  not  re- 
lieved from  liability  for  a  loss  caused  by  theft  or  negligence  of 
himself  or  any  of  his  servants,^  A  hotel-keeper  who  has  com- 
plied with  the  statute,  in  the  absence  of  negligence  is  not 
liable  where  the  guest  retains  valuables  in  his  possession.'^  It 
is  immaterial  whether  the  guest  owns  the  money  himself,  or 
whether  he  holds  the  same  in  trust,  as  he  is  nevertheless  the 
proper  person  to  bring  the  action  against  the  hotel-keeper  for 
its  loss;'  a  party  entering  into  a  contract,  whether  as  agent 
or  principal,  may  sue  in  his  own  name.*  And  in  an  action 
against  an  innkeeper  by  a  guest  for  loss  of  goods,  it  is  not 
necessary  to  aver  demand  or  negligence,^  and  it  will  be  suffi- 
cient to  show  his  liability,  to  state  that  plaintiff  was  enter- 
tained by  him  as  a  guest.^  An  innkeeper  may  also  be  liable 
for  personal  injury  caused  through  his  negligence  in  main- 
taining his  premises  in  a  condition  of  reasonable  safety  to  the 
guest.''  And  an  allegation  in  such  action  by  a  guest  that 
the  hotel-keeper  had  failed  to  light  a  hallway,  and  that  the 
stairway  was  not  guarded  by  an  inclosure  or  otherwise, 
although  not  stating  that  it  was  negligence,  has  been  held 
sufficient.^  A  boarding-house  keeper  is  liable  for  the  loss  of 
goods  of  a  boarder  only  when  he  has  failed  to  exercise  ordi- 
nary care  to  prevent  the  loss.^ 

1  R.  S.,  sec.  4427.  The  statute  does  see  Sneed  v.  Moiehead,  70  Miss.  690 ;. 
not  apply  to  goods  not  mentioned  in     13  So.  Rep.  235. 

it    Fuller  v.  Coates,  18  O.  S.  343.  9  Siegnian  v.  Keeler,  24  N.  Y.  S.  821. 

2  Lang  V.  Arcade  Hotel  Co.,  12  W.  The  court  in  this  case  makes  a  most 
L.  B.  250 ;  Fuller  v.  Coates,  supra.  excellent  review  of  the  question.     A 

3  Arcade  Hotel  Co.  v.  Wiatt,  1  O.  boarding-house  keeper  is  under  no- 
C.  C.  55 ;  R.  S.,  sec.  4995.  obligation  to  keep  a  boarder's  room 

■1  Davis  V.  Harness,  38  O.  S.  397 ;  locked  in  his  absence.   Id.    A  boarder 

Guard  V.  Neff,  39  O.  S.  607.  is  not  a  guest  in  the  sense  in  which 

5  Willard  v.  Reinhardt,  3  E.  D.  it  is  applied  with  reference  to  an  inn- 
Smith,  148.  keeper's  liability  (Hancock  v.  Rand, 

« Prescott  V.  Bruce,  2  C.  S.  C.  R.  58.  94  N.  Y.  1) ;  and  unlike  the  latter,  who 

"  Railroad  Co.  v.  Thompson,  77  Ala.  is  liable  as  an  insurer  of  his  patron's 

448;  Railroad  Co.  v.  Arnold,  80  Ala.  goods  (Hulett  v.  Swift,  33  N.  Y.  571), 

600.  a  boarding-house  keeper  is  answer- 

8  West  V.  Thomas,  11   So.  Rep.  768  able  for  a  loss  of  the  goods  only  if  he 

(Ala.,  1892).     As  to  personal  injuries,  has  omitted  to  exercise  ordinary  care 


^  694.] 


INNKEEPERS 


HOTELS. 


653 


Sec.  694r.  Petition  against  hotel-keeper  for  loss  of  guest's 
goods. — 

Plaintiff  says  that  the  defendant  is  a  corporation  organized 
under  the  laws  of  Ohio  for  the  purpose  of  o])erating  and  con- 
ducting the  business  of  an  innkeeper,  and   wa?  on  the  

day  of ,  18 — ,  and  is  at  the  present  time,  ojierating  The 


Hotel  Enierv,  at 


Ohio,  for  the  accommodation  and  en- 


tertainment of  the  general  traveling  public. 

That  on  the  said  day  of  ,  18 — ,  the  plaintiff  was 

received  by  the  defendant  as  a  guest  at  its  hotel,  and  placed 
his  trunk  and  baggage  in  the  care  and  custody  of  said  de- 
fendant. 

*That  while  said  plaintiff  was  so  remaining  at  said  hotel  as 
its  guest,  his  said  trunk,  with  its  contents,  was  taken  and  car- 
ried away  from  said  inn  without  plaintiff's  knowledge  or  con- 
sent [and  without  his  fault  or  neglect],  by  some  person  to 
him  unknown,  whereby  the  same  is  lost,  to  the  plaintiff's 
damage  in  the  sum  of  $ ,  for  which  he  asks  judgment,  etc. 

\0i\  for  money  deposited  which  is  stolen^  from'^^    There  is 

due  plaintiff  from  said  defendant  the  sum  of  $ ,  which  he 

depositetl  with  said  defendant  on  the  day  of ,  18 — , 

while  a  guest  at  said  hotel,  for  safe-keeping  in  its  safe,  in  ac- 
cordance with  its  rules  and  regulations  in  that  behalf,  which 


to  prevent  it  Barber  v.  Harrison,  6 
City  H.  Rec.  89;  Smith  v.  Read,  6 
Daly,  33;  Cooley,  Torts,  p.  761.  Or- 
dinary care  in  the  case  of  a  boarding- 
house  keeper  may  properly  include 
the  exercise  of  a  reasonable  degree 
of  discrimination  in  the  admission 
and  maintenance  of  persons  as  pa- 
trons of  iiis  establishment.  A  board- 
ing-house keeper,  furthermore,  is,  in 
the  absence  of  an  agreement  to  the 
contrary,  in  contemplation  of  law  a 
custodian  of.  his  patron's  goods.  In- 
galsbee  v.  Wood,  3G  Barb.  452  ;  Smith 
V.  Read,  supra.  The  former  thus  be- 
comes a  bailee  of  tlie  latter's  goods. 
Story,  Bailm.  (9th  ed.),  t^  23 ;  Coggs 
V.  Bernard,  1  Smith's  Lead.  Cas. 
(Amer.  ed..  Hare  &  Wallace's  Notes), 
p.  382 ;  4  Lawson,  Rights,  Rem.  &  Pr., 
g  1698  et  seq.  If,  upon  proper  de- 
mand by  the  bailor,  the  goods  are 
not  restored  by  the  bailee,  and  no 
sufficient  excuse  therefor  is  offered 


by  the  latter,  he  may  be  deemed  to 
have  converted  the  same  to  his  own 
use,  and  mulcted  in  damages  accord- 
ingly; but  if  it  be  shown  that  the 
goods  have  been  lost,  destroyed  or 
stolen,  he  is  not  answerable  for  their 
value,  unless  it  further  appears  tliat 
witli  due  care  on  the  part  of  the 
bailee  the  loss,  desti'uctiou  or  theft 
would  have  been  averted.  Claflin  v. 
IMeyer,  75  N.  Y.  260;  Leoncini  v. 
Post  (Com.  Pi.  N.  Y.),  13  N.  Y.  Supp. 
825.  The  burden  of  proof  in  such  a 
case  is,  as  in  other  instances  of  im- 
puted negligence,  upon  him  who 
asserts  the  want  of  due  care  (Claflin 
V.  Meyer,  Leoncini  v.  Post,  supra), 
the  presumption  always  being  that  a 
person  has  performed  a  duty  required 
of  him.  Bailey,  Onus  Prob.  216; 
Cosulich  V.  Oil  Co.,  122  N.  Y.  118;  25 
N.  E.  Rep.  259 ;  Turner  v.  Kouwen- 
hoven,  100  N.  Y.  115,  121;  3  N.  E. 
Rep.  637. 


G5i  INNKEEPERS  —  HOTELS.  [§§  695,  096. 

said  sura  of  money  plaintiff  has  demanded  from  said  defend- 
ant, but  which  it  wholly  refuses  to  pay. 
\_Prayer.'\ 

Note. —  Hotel-keeper  is  not  liable  under  the  statute  for  loss  of  goods, 
when  it  posts  up  the  proper  notices  that  it  has  a  place  for  the  safe-keeping 
of  articles  of  its  guests,  unless  the  guest  has  offered  to  deliver  the  prop- 
erty and  the  hotel-keeper  has  neglected  or  refused  to  deposit  the  same. 
R.  S.,  sec.  4437.  The  hotel-keeper  is  not  excused  if  property  intrusted  to  his 
care  has  been  stolen.    Gast  v.  Gooding,  7  W.  L.  J.  334. 

Sec.  695.  Petition  against  hotel  proprietor  for  loss  of 
watch  and  chain  from  guest's  room.— 

Plaintiff  says  that  the  defendants  were,  on  the day  of 

,  18 — ,  the  proprietors  of  the  Merchants'  Hotel  in  the  city 

of  C,  and,  as  innkeepers,  lodged  and  entertained  the  plaintiff 

as  a  guest  for  compensation,  from  the  said  day  of , 

18 — ,  to  the day  of ,  18 — ;  that  while  this  plaintiff 

was  being  so  entertained  as  a  guest  by  said  defendants,  at  an 

early  hour  of  the  morning  on  the  day  of  ,  18 — , 

■while  he  w^as  in  bed  in  his  room  in  said  hotel,  having  therein 

a  gold  watch  and  chain  of  the  value  of  $ ,  the  door  of  his 

room  being  locked,  he  unlocked  the  same  at  the  call  of  one  of 
defendant's  servants  to  enable  said  servant  to  make  a  fire  in 
his  said  room ;  that  a  few  minutes  thereafter  the  door  of  his 
said  room  was  opened  from  the  outside,  the  room  entered, 
and  his  said  watch  and  chain  were  stolen  and  entirely  lost  to- 

him  without  his  fault  and  to  his  damage  in  the  sum  of  $ , 

for  which  sum  he  asks  judgment  against  said  defendants. 

Note. —  The  petition  must  allege  that  the  defendant  is  an  innkeeper,  and 
that  the  plaintiff  was  his  guest.  Hill  v.  Owen,  5  Blackf.  333;  Laird  v.  Eich- 
old,  10  lud.  213 ;  Thickstun  v.  Howard,  8  Blackf.  536.  It  is  a  sufficient  al- 
legation, however,  to  state  that  the  plaintiff  as  a  guest  was  entertained  by 
the  defendants  as  innkeepers.  Prescott  v.  Bruce  &  Co.,  2  C.  S.  C.  R.  58; 
Peet  V.  McGraw,  25  Wend.  653.  Watch  and  chain  are  part  of  traveler's  bag- 
gage. Id. ;  Jones  v.  Voorhees,  10  0. 145.  A  guest  is  bound  only  to  ordinary 
care.     Ashill  v.  Wright,  6  El.  &  Bl.  890. 

Sec.  6%.  Petition  against  hotel-keeper  for  refusal  to  re- 
ceive guest. — 

[  Caption.'] 

Plaintiff  says  that  the  defendant  is  a  partnership  organized 
for  the  purpose  of  doing  business  in  Ohio,  and  is  the  proprie- 
tor and  keeper  of  a  hotel  in  the  city  of  C,  county  of ,. 

and  state  of  Ohio,  for  the  accommodation  of  the  general 
traveling  public.  [//  defendant  he  an  individual  hotel-keepei 
the  above  can  he  changed  to  meet  thefacts.^ 

That  the  plaintiff,  on  the day  of  -,  18—,  applied 

to  said  defendant  for  admission  as  a  guest  and  was  received 
into  said  hotel,  and  then  and  there  requested  the  defendant 
to  permit  the  plaintiff  to  stay  and  lodge  at  said  hotel  during 


§  OUT.]  INNKEEPERS HOTELS.  655 

the  night  of  the  same  day,  and  the  plaintiff  then  offered  to 
pay  the  defendant  a  reasonable  sum  of  monev  for  such  lodg- 
ing. 

That  the  defendant  had  sufficient  room  in  said  hotel  to  ac- 
commodate plaintiff,  but  refused  to  permit  him  to  stay  or 
lodge  therein  during  the  time  aforesaid,  whereby  he  was  com- 
pelled to  leave  said  hotel  and  was  put  to  great  inconvenience, 
trouble  and  humiliation  in  the  night  time  to  procure  accom- 
modation elsewhere,  and  was  injured  and  damaged  in  the 
sum  of  $ ,  for  which  he  asks  judgment. 

Sec.  697.  Answer  that  guest  failed  to  comply  with  rules 
and  lost  property  by  his  own  negligence. — 

[Caption  and  formal  averments.'] 

That  it  had  prepared  a  place  in  its  office  for  the  deposit 
of  overcoats  and  other  articles  of  personal  apparel  not  left  in 
the  rooms  as  baggage,  and  kept  there  a  person  to  receive  such 
articles  and  to  give  to  the  owner  a  check  therefor,  and  re- 
quired guests  to  so  de))osit  such  articles;  of  all  which  the 
plaintiff  had  notice;  that  the  plaintiff  neglected  and  omitted 
to  leave  his  overcoat  with  its  contents  in  the  custody  of  de- 
fendants, but  carelessly  and  negligently  hung  the  same  up  in 
the  open  hall  of  the  inn  without  any  notice  to  the  defendants, 
and  without  any  knowledge  on  their  part  that  he  had  so 
negligently  exposed  the  same;  and  that  while  so  carelessly 
exposed  by  the  plaintiff,  said  overcoat  was,  without  the  knowl- 
edge or  fault  of  the  defendants,  stolen,  as  they  suppose.  And 
so  the  defendant  says  that  said  overcoat  was  lost  through 
and  by  reason  of  carelessness  and  negligence  of  the  plaintiff, 
and  that  the  negligence  of  the  plaintiff  contributed  to  the  loss 
thereof. 

Wherefore  defendant  asks  that  it  may  go  hence  without 
day. 

Note.—  If  the  loss  did  not  occur  through  neglect  of  the  defendant  it  is  a 
matter  of  defense.  Baker  v.  Dessauer,  49  Ind.  28.  The  innkeeper  is  not 
liable  for  the  loss  if  it  occurs  by  reason  of  the  non-observance  of  the  hotel 
rules  by  the  guest,  nor  where  the  guest  takes  his  property  into  his  own  per- 
sonal care.    Fuller  v.  Coates,  18  O.  S.  34a 


CHAPTER  48. 


INSURANCE  —  FIRE. 


Sec.  698.  Insurance,    fire  —  Pleading 
conditions. 

699.  The  petition. 

700.  Same    continued  —  Insura- 

ble interest,  how  averred. 

701.  Petition  on  policy  alleging 

compliance  with  R.  S., 
sec.  3643,  requiring  build- 
ing to  be  examined  by 
agent  of  insurer,  etc.,  and 
for  total  loss. 
703.  Petition  on  fire  insurance 
policy  —  Ordinary  form. 

703.  Joint  petition  by  assignee 

of  mortgage  and  pur- 
chaser of  insured  prop- 
erty, averring  indorse- 
ment of  loss  payable  to 
petitioners  by  agent. 

704.  Petition      by      mortgagee 

building  association  for 
loss  of  property  mort- 
gaged. 

705.  Petition   where   conditions 

of  policy  as  to  proofs 
were  not  complied  with 
on  account  of  statements 
of  adjuster. 

706.  Petition   on   policy  asking 

for  equitable  relief 
against  mistake  by  in- 
serting wrong  name  of 
insured,  and  for  recovery 
thereon. 

707.  Petition  for  reformation  of 

amount  of  policy  and  for 
judgment  for  the  amount. 


Sec.  708.  Petition  by  trustees  of  fra- 
ternal society  for  loss 
upon  property,  including 
improvements  on  real  es- 
tate held  under  lease. 

709.  Fire    insurance  —  The   an- 

swer. 

710.  Answer  averring  breach  of 

conditions. 

711.  Answer  setting  up  fi-audu- 

lent  representations  aud 
concealment  as  lo  incum- 
brances by  insured. 

712.  Answer  that  policy  is  inval- 

idated by  reason  of  sale 
of  property  insured,  and 
judgment  against  same. 

713.  Answer  that  mortgagee  has 

ample  security  in  real  es- 
tate, and  that  policy  be- 
came void  because  of 
breach  of  condition  as  to 
premises  becoming  va- 
cant. 

714.  Answer    claiming  frauda- 

leut  concealment  of  in- 
terest of  assured  and  false 
representations  as  to  oc- 
cupancy of  premises,  and 
breach  of  provision  as  to 
notice  of  loss. 

715.  Answer  by  assignee  of  pol- 

icy held  as  collateral  se- 
curity. 

716.  Reply      by     insured     that 

breach  of  conditions  was 
waived  by  company. 


Sec.  698.  Insurance,  fire  —  Pleading  conditions. —  As  a 

policy  of  insurance  is  made  up  largely  of  conditions,  either  pre- 


§698.]  INSURAXCE FIRE.  657 

cedent  or  subsequent,  its  validity  must  depend  upon  the  strict 
performance  of  those  conditions.  As  a  natural  consequence, 
therefore,  in  setting  forth  a  cause  of  action  ui)on  a  policy,  the 
performance  of  the  conditions  should  be  averred.  Where  per- 
formance is  a  condition  precedent  to  the  liability  of  the  corn- 
pan}^,  the  plaintiff  must  either  allege  performance,  readiness 
to  perform  or  a  cause  for  non-performance.^  If  it  be  provided 
that  proof  of  loss  shall  be  made  to  the  insurer  within  a  cer- 
tain time  thereafter,  the  petition  must  allege  either  perform- 
ance by  the  insured  or  waiver  by  the  insurer.-  A  waiver  by 
one  party  to  an  agreement  of  the  performance  of  a  stipulation 
in  his  favor  is  not  a  performance  of  that  stipulation  by  an- 
other. It  is  a  cause  for  non-performance  and  should  be 
averred.^  But  a  general  allegation  that  the  plaintiff  has  per- 
formed all  the  conditions  on  his  part  to  be  performed  is  suffi- 
cient under  the  code,^  which  provides  that,  in  pleading  per- 
formance of  conditions  precedent  in  a  contract,  it  is  sufficient 
to  state  that  the  party  duly  performed  all  the  conditions  on 
his  part;  and  if  controverted,  the  party  pleading  must  show 
performance.^  But  where  there  are  unusual  conditions  the 
same  should  be  set  forth  in  the  pleading.^  It  has  been  held, 
however,  that  where  the  petition  is  defective  in  not  aver- 
ring performance  of  conditions  precedent,  it  will  be  cured  by 
averments  in  the  answer  that  the  same  has  been  performed 
by  the  plaintiff,  followed  by  averments  in  the  reply. ^  A 
waiver  of  the  filing  of  proofs  within  the  time  stipulated  is 
sufficiently  set  forth  by  stating  that  the  defendant  waived  the 
filing  thereof  within  the  time  stipulated  and  thereby  prevented 
plaintiff  from  performing  the  conditions  of  the  policy.^ 

A  stipulation  in  a  policy  that  a  suit  must  be  brought  within 

iHagood  V.  Shaw,  105  Mass.  276;  5  o.  Code,  sec.  5091.  Seea?i^e,sec.  59, 

Palmer    v.   Sawyer,   114    Mass,    13;  eiusurance  Co.   v.  Carson,  17  W. 

Carpenter  v.  Halcomb,  105  Mass.  280.  L.  B.  358. 

See  ante,  sec.  59,  7  Dayton  Ins.  Co.  v.  Kelly,  24  O.  S, 

2  Home  Ins.  Co.  v.  Lindsey,  26  O.  S,  345  ;  8  O.  S.  293. 

848.     See  Mehurin  v.  Stone,  37  O.  S.  s Union  Ins.  Co.  v.  Kukral.  7  O.  C. 

49>  C.  357.     A  waiver  may  be  made  for 

'•Palmer  V.  Sawyer.  114  Mass,  13.  the  time  fixed  by  the  policy.     Id.; 

*  Union   Ins,  Co,  v.  McGookey,  33  Insurance  Co.  v.  Harmer,  2  O.  S.  453. 
O.  S.  555 ;  Crawford  v.  Satterfield,  27 
O,  S.  421. 
42 


658  INoUKANOE FIKE.  [§698. 

a  certain  time  cannot  be  available  to  a  company  where  the 
insured  brought  an  action  within  the  time,  but  by  mistake  in 
the  summons  the  company  was  not  brought  into  court,  where 
it  voluntarily  appeared  and  moved  to  strike  the  petition  from 
the  files,  and  the  writ  was  afterwards  amended.^  A  vio- 
lation of  a  condition  that  the  insured  property  shall  not  be 
alienated  or  incumbered  w^ithout  consent  of  the  insurer  will 
avoid  the  policy,  although  it  be  provided  that  the  consent  of 
the  company  will  be  given  upon  request.^  But  a  policy  issued 
to  a  mercantile  partnership  containing  no  such  stipulation  can- 
not be  avoided  by  a  sale  by  one  partner  to  his  copartner.* 
Even  where  the  policy  contains  such  restrictions,  a  sale  by  one 
partner  to  another  who  continues  the  business  does  not  avoid 
it;*  the  remaining  partner,  being  the  real  party  in  interest, 
should  bring  the  suit,  and  is  entitled  to  recover  the  whole  loss.* 
And  where  a  person  takes  a  partner  in  the  business  it  is  not 
considered  such  a  sale  or  transfer  as  will  avoid  the  policy.^ 
To  work  a  forfeiture  under  such  a  condition  the  entire  inter- 
est of  the  insured  must  be  sold  or  transferred.'^  An  assignee 
of  a  policy  assigned  with  the  company's  consent,  and  in  viola- 
tion of  the  terms  of  the  policy,  cannot  recover  thereon.^  So 
where  a  person  takes  a  partner,  and  the  premises  are  de- 
stroyed after  the  formation  of  the  partnership,  and  the  policy 
has  not  yet  been  transferred,  recovery  may  be  had  in  the 
name  of  the  insured.^  Where  an  action  is  brought  on  a  pohcy, 
the  conditions  of  which  were  that  the  insurer  might  rebuild 
or  replace  the  property,  it  is  necessary  to  aver  in  the  petition 
that  the  insurer  refuses  to  so  rebuild  or  replace  the  property 
destroyed. ^"^  If  false  statements  have  been  made  in  an  appli- 
cation  for  insurance,  it  is  not  necessary  in  an  action  thereon 

1  Burton  v.  Insurance  Co.,  26  O.  S.    arises  from  the  difference  in  the  lan- 
467 ;    Minerick  v.  Insurance  Co.,   1    guage  of  the  policy. 

Clev.  Rep.  134.  "^  Blackvvell  v.  Insurance  Co.,  supra. 

2  Home  Ins.  Co.  v.  Lindsey,  26  a  S.        «  West  v.  Insurance  Co..  27  O.  S.  1 
348.  Dix   V.   Insurance  Co.,   22  111.  277 

3  West  V.  Citizens'  Ins.  Co.,  27  O.  S.  1.     Hartford  Ins.  Co.  t.  Ross,  23  Ind.  179 
*  West  V.  Citizens'  Ins.  Co.,  supra.     Cowan  v.  State,  40  Iowa,  551. 

5  West  V.  Insurance  Co.,  supra.  ^  Blackvvell    v.   Insurance  Co.,  48 

6  Blackwell   v.   Insurance  Co.,    48    O.  S.  533. 

O.  S.  533.  There  is  some  conflict  lO  Union  Ins.  Co.  v.  McGookey,  83 
among  the  authorities.  See  cases  O.  S.  555 ;  Howard,  etc.  Ins.  Ca  T. 
cited   in  the   opinion.     The   CMiiflict     Cornick,  24  111.  455. 


§  099.]  INSUEANCB  —  FIKE.  659 

to  set  forth  the  application  and  aver  the  truth  of  representa- 
tions therein,  as  the  falsity  of  such  representations  is  matter  of 
defense.!  If  a  policy  of  insurance  on  a  store-house  and  stock 
of  goods  therein  contains  a  condition  that  it  shall  be  void  if 
the  premises  insured  stand  on  ground  not  owned  in  fee-simple 
by  the  insured,  unless  by  consent  of  the  company,  an  action 
thereon  for  the  loss  of  goods  will  not  be  defeated  by  a  breach 
of  condition  as  to  title  of  land,  as  the  contract  is  held  to  be 
severable.- 

Sec.  699.  The  petition —  A  good  cause  of  action  on  a 
policy  of  insurance  may  be  shown  without  setting  forth  the 
survey  or  application.^  Where  a  policy  of  fire  insurance  con- 
tains a  provision  that  the  loss,  if  any,  shall  be  paid  to  one 
other  than  the  insured,  it  is  insufficient  in  an  action  thereon 
by  the  heneJiGiary  to  allege  and  prove  that  he  has  complied 
with  the  terms  thereof,  and  suffered  loss,  bnt  it  should  be 
averred  and  proved  that  the  insured  has  complied  with  the 
terms  and  suffered  loss.*  Where  a  petition  alleges  and  relies 
on  a  complete  performance  of  a  contract,  and  a  reply  sets  up 
a  failure  to  perform  as  to  time,  and  new  matter  as  a  cause  of 
such  failure,  it  will  be  such  a  departure  as  constitutes  a  vari- 
ance.^ Where  the  date  of  agreement  to  insure  and  the 
formal  execution  and  delivery  of  a  policy  are  different,  the 
latter  relates  back  and  takes  effect  as  of  the  (kite  of  the  agree- 
ment to  insure.'^  The  same  rule  as  to  attaching  a  copy  of 
instruments  heretofore  stated  ^  applies  to  actions  upon  insur- 
ance. When  a  loss  occurs  the  policy  becomes  an  evidence  of 
indebtedness,  and  a  copy  must  therefore  be  attached  to,  but 

1  Insurance  Co.  v.  McGookey,  33  3  insurance  Co.  v.  McGookey,  83 
O.  S.  555.  See  Insurance  Co.  v.  O.  S.  560 ;  Insurance  Co.  v.  Hogan, 
Hogan,  80  111.  35.  80  111.  35 ;  Insurance  Co.  v.  Carpen- 

2  Coleman  v.  Insurance  Co.,  49  O.  S.  ter,  4  Wis.  200 ;  Harraan  v.  Insurance 
310 ;  Insurance    Co.  v.   Spankneble,  Co.,  28  111.  235. 

53  111.   58 ;  Insurance  Co.  v.  Walsh,        4  W'estern    Ins.   Co.  v.  Carson,   17 

54  111.464;  Koontz  v.  Insurance  Co.,     W.  L.  B.  357. 

42  Mo.  126;  Merrill  v.  Insurance  Co.,  8  Bennett  v.  Insurance  Co.,  27  W. 

73  N.  Y.  452 :  Schuster  v.  Insurance  L.  B.  15,  17 ;  Trainer  v.  Wornian,  34 

Co.,  102  N.  Y.  260.    Contra,  Barnes  v.  Minn.  237.     See  also  IMiller  v.  Insur- 

Insurance  Co.,  51   Mo.  110;  Havens  ance  Assoc,  47  N.  J.  L.  393. 

V.  Insurance  Co.,  Ill  Ind.  90;  Cuth-  6  Bennett  v.  Insurance  Co.,  37  W. 

bert  V.  Insurance  Co.,  96  N.  C.  480 ;  L.  B.  15. 

Bank  v.  Insurance  Co.,  57  Conn.  335.  7  Ante,  sec.  57. 


660 


INSURANCE • 


FIRE. 


[§  700. 


not  made  a  part  of,  the  petition.^  Where,  however,  a  copy  of 
the  policy  has  been  attached  to  a  petition  which  has  not  been 
objected  to  by  motion,  it  will  not  be  error  for  the  reviewing 
court  to  treat  it  as  part  of  the  petition.^ 

Sec.  700.  Same  continued  —  Insurable  interest,  how 
averred. —  The  first  essential  averment  in  an  action  on  a 
policy  of  insurance  is  an  insurable  interest  in  the  plaintiff.^ 
It  is  said  that  the  petition  should  allege  ownership  of  the 
premises  at  the  time  of  insurance  and  of  the  loss;  *  while  other 
courts  hold  that  under  an  allegation  setting  forth  the  sub- 
ject-matter of  insurance  and  the  nature  of  the  risk,  without 
specifying  the  nature  or  extent  of  the  interest  of  the  insured, 
insurable  interest  may  be  shown.*  And  an  insurable  interest  is 
sufficiently  shown  where  it  is  alleged  that  the  insurance  com- 
pany, for  a  specified  premium,  executed  and  delivered  a  policy 
of  insurance  on  specific  property  occupied  by  plaintiff.^  A 
landlord  has  an  insurable  interest  in  permanent  improvements 
added  to  his  building  by  a  tenant."  But  a  tenant  who  has 
made  a  verbal  agreement  with  his  landlord  to  keep  the  prem- 
ises insured  has  such  an  insurable  interest  therein  that  he 
may  take  it  in  his  ow^n  name.^  The  test  of  insurable  interest 
is  whether  an  injury  to  the  property,  or  its  destruction  by  the 
peril  insured  against,  will  cause  any  pecuniary  loss  to  the  in- 
sured.^    The  petition  should  identify  by  description  the  prop- 


1  See  ante,  sec.  57. 

2  Byers  v.  losurauce  Co.,  35  O.  S. 
606. 

3  Freeman  v.  Insurance  Co.,  38 
Barb.  247. 

4  Phoenix  Ins.  Co.  v.  Benton,  87 
Ind.  132. 

5  Insurance  Co.  v.  Harmer,  2  O.  S. 
453;  Fletcher  v.  Insurance  Co.,  18 
Pick.  419;  Tyler  v.  Insurance  Co.,  12 
Wend.  507 ;  Strong  v.  Insurance  Co., 
10  Pick.  40.  See  Insurance  Co.  v. 
McGookey,  33  O.  S.  561. 

6  People's  Ins.  Co.  v.  Heart,  24  O.  S. 
831,  332. 

^  Western  Ins.  Co.  v.  Carson,  17  W. 
L.  B.  357. 
8  Berry  v.  Insurance  Co.,  132  N.  Y. 


49;  Lawrence  v.   Insurance  Co..  43 
Barb.  479. 

9  Wood  on  Fire  Ins.,  sec.  282.  A 
common  carrier  may  insure  goods 
intrusted  to  it.  Crowley  v.  Cohen, 
13  B.  &  A.  478;  London,  etc.  Ry.  v. 
Glyn.  1  El.  &  El.  652.  So  may  a 
warehouseman.  Stilwell  v.  Staples, 
19  N.  Y.  401 ;  Pelzer  Manufg.  Co. 
V.  Sun  Fire  Office,  15  S.  E.  Eep.  562. 
An  administrator  of  an  insolvent 
estate  has  an  insurable  interest  in 
buildings.  Herkimer  v.  Rice,  27  N. 
Y.  163.  Agents,  commission  mer- 
chants and  others  having  custody  of 
property  may  insure  in  their  own 
.names.  Waring  v.  Insurance  Co., 
45  N.  Y.  606.     A  husband  has  an  in- 


§701.]  INSURANCE — FIRE.  661 

erty  burned  with  that  insured,  and  should  show  insurable  in- 
terest in  the  plaintiff  at  the  time  of  loss.^ 

Sec.  701.  Petition  on  policy  alleging  compliance  with 
Rerised  Statutes,  section  :J743,  requiring  building  to  be  ex- 
amined by  agent  of  insurer,  etc.,  and  for  total  loss. — 

The  plaintiff  says  the  defendant  is  a  corporation  daly  organ- 
ized under  the  laws  of  the  state  of  New  York  to  do  and  trans- 
act the  business  of  insurance  against  loss  by  tire,  and  repre- 
sented by  agents  only,  in  said county,  Ohio. 

That  on  the day  of  ,  IS — ,  said  plaintiff  was,  and 

ever  since  has  been,  the  owner  of  a  two-story  brick  store  build- 
ing, with  basement,  tin  roof  and  brick  cornice,  situated  on  the 

northwest  corner  of  E.  and  S.  streets,  in  the  village  of  W., ■ 

county,  Ohio. 

That  on  the  day  aforesaid,  in  consideration  of  the  premium 

of dollars  paid,  defendant  by  its  policy  of  insurance  (a 

copy  of  which  is  hereto  attached,  marked  "  Exhibit  A  "),  in- 
sured plaintiff  against  loss  or  damage  by  fire  to  the  amount  of 

dollars  on  said  property,  from  the  day  of  , 

18 — ,  at  12  o'clock,  noon,  until  the day  of ,  18 — ,  ^t 

12  o'clock,  noon. 

That  said  defendant  has  received  the  premium  upon  the  full 
amount  mentioned  in  said  policy,  to  wit: hundred  dol- 
lars. That  said  insurance  company,  before  insuring  said  build- 
ings as  aforesaid,  caused  the  same  to  be  examined  by  the  agent 
of  said  insurer,  to  wit,  one  S.  W.  S.,  and  a  full  description 
thereof  to  be  made  and  the  insurable  value  thereof  to  be  fixed 
by  said  agent.  That  no  change  has  been  made  increasing  said 
risk  without  the  consent  of  said  insurer,  and  that  there  has 
been  no  fraud,  intentional  or  constructive,  on  the  part  of  the 
insured. 

Plaintiff  further  says  that  on  the day  of ,  18 — ,  all 

of  said  buildings  were  totally  destroyed  by  fire.    That  plaintiff 

immediately  thereafter,  to  wit,  on  the day  of ,  18 — , 

more  than  sixty  days  prior  to  this  action,  gave  defendant  due 
notice  and  proof  of  said  fire  and  loss ;  that  the  defendant  at 
that  time,  by  its  agent  duly  authorized,  and  on  the  premises 
where  said  tire  occurred,  entered  upon  an  adjustment  of  said 
loss  —  had  the  same  estimated  and  damage  thereof  appraised  — 
and  thereby  waived  further  notice  and  proof  of  said  loss. 
That  plaintiff  has  been  at  all  times  ready  and  willing  to  enter 

surable  interest  in  a  homestead  of  Appleton  lion  Co.  v.  Assurance  Ca, 

which  his  wife  holds  title.    Merrett  v.  46  Wis.  23. 

Insurance  Co.,  42  la,  13.     See  Glaze        ^  ^tna  Ins.   Co.  v.  Black,  80  Ind. 

V.  Insurance  Co.,  87  Mich.  349.    Both  513;  ^tna  Ins.  Co.  v.  Kittles,  81  Ind. 

mortgagor  and  mortgagee  of  chattels  S6;  Home  Ins.  Co.  v.  Duke,  75  Ind* 

have  an  insurable  interest  therein.  535. 


002  INSUKANCE riKE,  [§  702. 

into  an  arbitration,  as  provided  in  said  policy,  but  has  been 
unable  to  do  so  through  the  fault  of  defendant.  That  plaintiff 
has  duly  performed  all  the  other  conditions  of  said  policy  on 
his  part  to  be  performed,  and  no  part  of  said  loss  has  been 
paid. 

Wherefore  plaintiff  asks  judgment  against  said  defendant  in 

the  sum  of dollars  with  interest  thereon  from  the  

day  of ,  18—.  J.  B.,  Attorney  for  Plaintiff. 

Note. —  From  Phoenix  Ins.  Co.  v.  Ken uedy,  error  to  circuit  court  of  Lake 
county,  No.  1902.  Demurrer  to  petition  overruled  and  affirmed  by  circuit 
and  supreme  courts.  27  W.  L.  B.  347.  Revised  Statutes,  section  3643,  requires 
all  companies  iusurius:  buildings  to  cause  the  same  to  be  examined  by  an 
agent  of  such  insurer,  and  a  full  description  made.  The  neglect  or  omission 
of  a  company's  agent  to  make  the  examination  and  fix  the  value  according 
to  statute  will  not  prevent  application  of  statute  to  a  policy  issued  by  the 
company,  or  defeat  or  affect  the  operation  of  the  statute.  Insurance  Co. 
V.  Leslie,  47  0.  S.  409. 

Sec.  702.  Petition  on  fire  iusnrance  policy  —  Ordinary 
form. — 

[  Cajytion  and  averment  of  corporate  capacity.'] 

That  the  said  defendant,  in  consideration  of  a  certain  pre- 
mium, by  and  between  the  said  plaintiff  and  defendant  agreed 
upon  and  by  the  said  plaintiff  then  paid,  to  wit,  the  sum  of 

$ ,  on  the day  of ,  18 — ,  at  C,  Ohio,  did  by  a 

certain  policy  of  insurance  of  that  date,  duly  executed,  insure 
the  said  plaintiff  against  loss  or  damage  by  fire  to  the  amount 

•of  $ ,  for  the  period  of years  from  the day  of 

,  18 — ,  at o'clock  —  M.,  to  the  — —  day  of ,  18 — , 

;at o'clock  —  M.,  upon  the  property  specified,  described 

.and  located  as  follows :  \_DesGriptiorh  of  propjerty^ 

And  said  com])any,  in  and  by  said  policy  of  insurance, 
which  was  in  writing,  agreed  to  indemnify  and  make  good 
unto  his  plaintiff,  or  to  his  legal  representatives,  all  such  loss 
or  damage,  not  exceeding  in  amount  the  sum  or  sums  insured 
as  above  specified,  nor  the  interest  of  plaintiff  in  said  prop- 
erty, as  should  happen  by  fire  to  the  property  above  described ; 
the  amount  of  loss  or  damage  to  be  estimated  according  to  the 
actual  value  of  the  property  at  the  time  of  the  loss,  making 
due  allowance  for  depreciation  from  location,  use  or  other- 
wise, and  to  be  paid  sixty  days  after  the  loss  shall  have  been 
ascertained,  in  accordance  with  the  terms  and  conditions  of 
said  policy,  and  proof  of  the  same  satisfactory  to  said  defend- 
ant should  have  been  made  by  plaintiff  and  received  at  the 
office  of  said  defendant. 

It  was  mutually  understood  and  agreed  in  said  policy  by 
and  between  plaintiff  and  defendant  that  said  policy  was 
made  and  accepted  with  reference  to  the  terms  and  conditions 
therein  set  forth,  and  the  conditions  as  to  procedure  in  case 
of  loss  annexed  to  said  policy,  which  conditions  were  by  said 


INSURANCE  —  FIRE. 


G63 


§  702.] 

policy  declared  to  be  a  part  of  the  same  and  were  to  be  used 
and  resorted  to  in  order  to  determine  the  rights  and  obliga- 
tions of  the  parties  to  said  policy  in  all  cases  not  otherwise 
specially  provided  for  in  writing,  and  that  no  condition,  stip- 
ulation, covenant  or  clause  contained  in  said  policy  should  bo 

;  altered,  annulled  or  waived,  or  any  clause  added  to  said  pol- 
icy, except  by  writing,  indorsed  thereon  or  annexed  thereto 

f'by  the  president  or  secretary  or  duly  commissioned  agent  of 
said  company.  The  terms  and  conditions  set  forth  m  said 
policy  are  in  the  words  and  figures  following,  to  wit:  [Set 
ihem  fo7'th.'] 

That  said  policy  is  by  said  defendant  numbered (and 

attached  hereto  as  an  exhibit).  And  the  said  plaintiff  further 
saith  that,  at  the  time  of  the  date  of  said  policy  of  insurance, 
the  said  plaintiff  was  the  owner  of  all  property  mentioned  in 
said  policy  and  so  continued  from  thence  up  and  until  the 
time  of  the  loss  hereinafter  mentioned.  Plaintiff  further  ,ays 
that  he  has  duly  kept,  observed  and  performed  all  the  re- 
quirements and  conditions  contained  in  said  policy  and  an- 
nexed thereto  and  on  the  back  and  sides  thereof  and  in  all  the 
fine  print  and  coarse  print  stamped  or  impressed  upon  said 
policy,  by  him,  the  said  plaintiff,  to  be  kept,  observed  and  per- 
formed 'in  that  behalf;  and  the  plaintiff  further  avers  that 

afterward,  on  the day  of ,  18—,  the  said  [description 

of  jproperty  and  statement  of  loss]. 

Plaintiff  says  that  on  said day  of ,  18—,  he  imme- 
diately gave  notice  of  said  loss  in  writing  to  defendant,  and 
on  the day  of ,  18—,  plaintiff  did  render  to  defend- 
ant a  particular  statement  of  the  loss,  signed  and  sworn  to  by 
plaintiff,  stating  all  the  knowledge  and  information  which 
plaintiff  had  or  was  able  lo  obtain  as  to  the  origin  and  cir- 
cumstances of  the  fire,  and  also  stating  the  title  and  interest 
of  plaintiff  and  of  all  others  in  the  property,  the  cash  value 
thereof,  the  amount  of  loss  and  damage,  all  other  insurance 
covering  any  of  said  property,  and  a  copy  of  the  written 
parts  of  all  policies  and  occupation  of  the  entire  premises. 

Plaintiff  says  that  defendant  waived  the  filing  of  said  state- 
ment within  fifteen  days  and  prevented  plaintiff  from  com- 
plying with  that  provision  of  the  policy.     Plaintiff  says  that 

on  the  day  of ,  18—,  he,  in  writing,  requested  said 

defendant  to  submit  the  question  as  to  the  amount  of  loss  and 
damage,  and  all  other  questions  that  might  arise  under  said 
pohcy,  except  the  validity  of  the  contract  or  the  liability  of 
said  companv,  to  conqjetent  and  impartial  persons,  pursuant 
to  11  2d  of  the  fine-])rint  conditions  on  the  top  of  the  back 
part  of  said  policy,  but  said  defendant  utterly  refused  thus 
or  in  any  other  inanner  to  submit  said  matter  to  arbitration. 
Plaintiff  further  says  that  said  statement  and  proofs  of  loss 
so  furnished  by  this  plaintiff  as  aforesaid  to  said  defendant 


QQ4:  INSURANCE FIRE.  [g   703. 

have  never,  by  said  defendant,  been  objected  to;  and  plaintiff 
says  that  said  proofs  of  loss  so  by  this  plaintiff  furnished  as. 
aforesaid  were  satisfactory  to  said  defendant;  that  defendant 

received  said  proofs  of  loss  on  said  •  day  of  ■,  18 — , 

at  the  office  of  said  company,  and days  from  said  time 

and  from  the  time  of  ascertaining  the  loss,  in  accordance 
with  the  terms  and  conditions  of  said  policy,  have  long 
since  elapsed ;  yet  the  said  defendant,  although  the  said 
plaintiff  has  performed  all  and  singular  the  requirements 
and  conditions  by  said  policy  and  the  schedule  and  line 
print  on  the  back  thereof  and  thereto  attached  required  to 
be  done  and  performed  by  the  said  plaintiff,  to  entitle  him  to 
the  payment  of  said  amount  of  loss  so  sustained  by  said 
plaintiff,  and  render  the  ^-  ud  defendant  liable  to  pay  the  same, 
not  regarding  its  duty  in  the  premises,  did  not  nor  would 

not  pay  the  said  sum  of  $ ,  nor  any  part  thereof,  to  the  said 

plaintiff,  but  hitherto  and  still  refuses  so  to  do,  to  the  dam- 
age of  said  plaintiff  in  the  sum  of  8 .     AVherefore  the  said 

plaintiff  prays  judgment  against  the  said  defendant  for  the 

said  sum  of  '$ ,  with  interest  thereon  from ,  18 — ,  his 

damages  as  aforesaid  sustained. 

Note.—  From  United  Firemen's  Ins.  Co.  v.  Kukral,  error  to  C.  C.  Cuya- 
hoga Co.,  No.  1G99,  27  W.  L.  B.  311. 

Termination  of  a  contract  of  insurance:  Insured  may  require  policy  to 
be  canceled.  R.  S..  sec.  3664.  Parties  to  a  contract  of  insurance  may  agree 
upon  terms  and  conditions  upon  which  it  may  be  canceled.  Insurance  Co. 
V.  Brecheiseu.  30  W.  L.  B.  303 ;  50  O.  S.  542. 

Construction:  Exceptions  in  a  policy  should  be  strictly  construed.  West. 
V.  Insurance  Co.,  27  O.  S.  10 :  May  on  Insurance,  sec.  174. 

Damages:  Tiie  measure  of  damages  for  loss  of  property  is  the  actual 
cash  value  at  the  time  of  the  loss.  Mitchell  v.  St.  Paul,  etc.  Ins.  Co.,  53  N. 
W.  Rep.  1017 ;  28  W.  L.  B.  158 ;  Chippewa  Lumber  Co.  v.  Insurance  Co.,  44 
N.  W.  Rep.  1055. 

Insurance  money  collected  after  the  death  of  the  owner  of  the  property 
is  distributed  as  re'al  estate,  and  widow  is  entitled  to  dower.  Fleming  v. 
Jordan,  38  W.  L.  B.  333. 

Sec.  703.  Joint  petition  by  assignee  of  mortgage  and  pur- 
chaser of  insured  property,  averring  indorsement  of  loss 
payable  to  petitioners  by  agent. — 

That  on  the  day  of  ,  18—,  one  A.  C.  was  the 

owner  of  a  certain  barn'^and  the  contents  therein,  consisting 
of  hay,  grain,  fodder  and  seed,  and  also  was  owner  of  certain 
farming  implements,  etc.,  in  said  buildings  contained.  That 
said  buildings  with  contents  as  aforesaid  were  situate  on  the 
following  described  premises,  to  wit :  iDesorlpiion.'] 

That  on  the  day  of  -,  18 — ,  and  in  consideration 

of  dollars  paid,  the  said  defendant   by  their  policy  of 

insurance,  a  copy  of  which  is  hereto  attached  marked  -  Ex- 
hibit A,"  insured  the  said  A.  C.  against  loss  or  damage  by  lire- 
on  said  buildings  and  contents  thereof  to  the  amount  of > 


I 


§  T03.]  INSURANCE FIKE.  665 

dollars  from  the  day  of  ,  18—,  at  12  o'clock  noon, 

untiltjie  day  of  '-,  IS — ,  noon.     [State  any  necessary 

conditions  of  the  policy.] 

That  on  the day  of ,  IS—,  said  A.  C.  duly  executed 

and  delivered  to  one  W.  W.  and  11.  R.  his  certain "  mortgage 
on  said  premises  to  secure  the  payment  of  histwo  certam 
promissory  notes  of  even  date  with  said  mortgage.  [Give 
description  of  notes']. 

That  on  the  day  of  ,  IS—,  the  said  R  E.  for  a 

valuable  consideration  duly  assi<rned  and  transferred  to  the 
said  plaintiff,  A.  E.  IL,  all  his  right,  title  and  interest  in  and 

to  said  note  and  mortgage ;  and  that  on  the day  of , 

IS—,  the  said  W.  W.  for  a  valuable  consideration  also  duly 
assigned  and  transferred  to  said  plaintitf,  A.  E.  II.,  all  hfs 
right,  title  and  interest  to  his  said  note  and  mortgage,  and 

that  thereby  the  said  plaintiff  II.  became  on  said day  of 

,  18—,  the  sole  owner  of  said  mortgage  and  the  notes  se- 
cured thereby,  and  that  he  ever  since  that  time  has  been 
and  is  still  the  owner  of  the  same. 

That  on  the  day  of  ,  18—,  said  A.  C.  also  duly 

executed  to  the  said  plaintiff,  I.  C,  his  certain  mortgage  on 
said  premises,  to  secure  the  payment  of  his  certain  promis- 
sory note  executed  to  the  said  I.  C.  on  the dav  of ^ 

IS—,  and  calling  for  $ ,  with  interest  from  date'at  rate  of 

per  cent,,  payable  annually. 

That  on  the day  of ,  18—,  for  a  valuable  considera- 
tion the  said  insured  A.  C.  sold  and  transferred  to  the  said 
plaintiff,  C.  V.  C,  all  his  right,  title  and  interest  in  and  to 
the  aforesaid  personal  property  so  insured  by  defendant,  con- 
sisting of  corn,  grain,  hay,  seed,  fodder,  wagons,  carriages, 
harness  and  farming  implements,  and  being  the  contents  of 
said  buildings  insured  as  aforesaid. 

That  the  said  plaintiff,  C.  V.  C,  on  said day  of , 

IS — ,  became  the  sole  owner  of  said  personal  property  so  in- 
sured, and  ever  afterwards,  and  on  the day  of ,  18 — ^ 

was  still  the  owner  of  the  same,  when  it  was  totally  destroyed 
by  fire  as  hereinafter  set  forth. 

And  plaintiffs  further  say  that  additional  incumbrances  by 
mortgage  and  liens,  having  been  placed  upon  said  premises 
after  the  issuing  of  said  policy,  and  said  transfer  of  said  per- 
sonal property  having  been  made  to  C.  Y.  C,  the  said  A.  C. 
did  on  the day  of ,  IS—,  at  the  request  of  said  plaint- 
iffs and  for  their  benefit,  take  said  policy  of  insurance  to 
D  W.W.,  the  duly  appointed  and  qualified  and  authorized  agent 
of  the  said  defendant  at  H.,  Ohio,  and  did  then  and  there 
state  and  fully  make  known  to  said  agent  of  the  said  defend- 
ant the  kind,  number  and  amount  of  said  additional  mortgage 
and  liens,  and  did  fully  make  known  to  said  agent  that  said 
personal  property  had  been  duly  sold  and  transferred  to  said 


QQQ  INSURANCE FIRE.  [§703. 

plaintiff,  C.  Y.  C,  and  that  said  insured  then  and  there 
stated  to  said  agent  that  he  desired  to  make  said  policy  a  good 
and  valid  policy  if  it  were  not  such  then,  and  that  he  desired 
to  make  said  plaintiffs  the  beneficiaries  under  said  policy ;  that 
said  insured  inquired  of  said  agent,  TV.,  whether  a  new  policy 
should  be  made,  but  that  said  agent  assured  said  A.  C.  that  a 
new  policy  would  not  be  necessary;  that  he,  the  said  W., 
would  make  said  policy  as  good  as  a  new  one  to  said  plaintiffs, 
and  that  thereupon  said  agent  indorsed  upon  said  policy  the 
following,  to  wit: 

Loss,  if  any,  under  this  policy  on  buildings  payable  to  A. 
E.  H.  and  I.  C,  mortgagees,  as  their  interest  may  appear,  and 
on  contents  of  barn  to  C.  Y.  C. 

D.  W.  W.,  agent,  H.,  O. 

Said  mortgage  executed  to  said  R.  and  "W".,  and  duly  as- 
signed and  transferred  as  aforesaid  to  plaintiff,  A.  R.  H.,  and 
the  debt  thereby  secured,  is  wholly  unpaid  and  unsatisfied, 
and  said  insured,  A.  C,  is  indebted  to  said  plaintiff  H.  thereon 
in  the  sum  of dollars,  with  interest  at  —  per  cent.,  pay- 
able annually,  on  $ ,  from  the day  of ,  18^. 

An.  I  said  mortgage  executed  to  I.  C,  and  the  note  thereby 
secured,  is  wholly  unpaid  and  unsatisfied,  and  there  is  due 
said  plaintiff,  I.  C.,  thereon  from  said  insured,  A.  C,  the  sum 

of dollars,  with  interest  on  S ,  at  rate  of per  cent. 

per  annum,  from da}^  of ,  18 — . 

And  plaintiffs  further  say  that  the  said  D.  W.  W.  was  on 

the day  of ,  18 — ,  tlie  duly  appointed  and  authorized 

agent  of  the  said  O.  F.  Insurance  Company,  with  full  power 
to  make  insurance  by  policies  of  said  company,  to  make  such 
indorsements,  to  consent  to  incumbrances,  liens,  transfers,  as- 
signments, and  to  do  all  other  things  pertaining  to  the  busi- 
ness of  said  agency;  and  that  said  agency  was  in  force  during 
all  of  the  transactions  hereinbefore  mentioned.     That  ])laint- 

iffs,  tiirough  the  said  insured,  on  the  day  of ,  IS—, 

made  known  to  said  agent  W.  the  exact  condition  of  said 
property  so  insured,  and  fully  explained  to  him  the  nature  and 
amount  of  said  incumbrances  and  liens,  and  the  fact  of  said 
transfer  of  said  ]>ersonal  property,  and  that  with  such  knowl- 
edge said  agent  W.  agreed  that  said  policy,  when  so  indorsed 
by  him  as  aforesaid,  should  have  the  force  and  effect  of  a  new 
policy.  That  said  plaintiffs,  believing  that  such  was  the  case, 
relied  and  acted  upon  tiie  statements  and  agreements  so  made 
by  said  agent;  that  said  insured  has  duly  performed  all  the 

conditions  on  his  part  to  be  performed,  and  that  on  the 

day  of ,  18 — ,  the  said  barn  and  corn-house,  and  the  con- 
tents of  said  buildings,  consisting  of  hay,  grain,  fodder,  seed, 
wagons,  carriages,  harness  and  farming  implements,  were 
totally  destroyed  by  fire,  and  that  immediatel_y  thereafter,  on 
the day  of ,  18—,  said  A.  C.  duly  notified  defendant 


^§704.]  INSURANCE I-IRE.  G67 

of  said  loss,  and  on  the  ^ —  day  of ,  IS — ,  and  more  than 

ninety  days  prior  to  this  action,  gave  defendant  due  proofs  of 
said  loss  and  rendered  to  defendant  a  particular  account  of 
the  same.     That  said   buildings   and   property  so  destroyed 

were  of  the  value  of  $ .     That  on  the  — —  day  of , 

18 — ,  the  said  defendant  by  their  agent,  one  G.  H.  M.,  care- 
fully adjusted  said  loss  and  agreed  to  pay  the  same. 

But  plaintiffs  say  that  said  loss  has  not  been  paid,  nor  any 
part  thereof,  and  that  defendant  refuses  to  pay  the  same, 
though  often  requested  so  to  do. 

Wherefore  plaintiff  prays  judgment  against  the  said  defend- 
ant, the  O.  F.  Insurance  Company,  in  said  sum  of  $ ,  with 

interest  thereon  from  the  day  of ,  18 — . 

Note. —  Fiom  Ohio  Farmers'  Ins  Co.  v.  Hames  et  al..  error  to  circuit 
court  of  Carroll  county.  Supreme  Court,  unreported,  No.  1854.  Judgment 
in  favor  of  petitioners  in  common  pleas  and  circuit  court  and  supreme  court 

Sec.  704.  Petition  by  mortgagee  building  association  for 
loss  of  property  mortgaged. — 

Plaintiff  is  and  at  all  times  hereinafter  mentioned  was  a 
corporation  duly  incorporated  and  existing  under  and  by  vir- 
tue of  the  laws  of  the  state  of  Ohio,  and  having  its  place  of 

business  in  the  city  of  C,  in  the  county  of ,  and  state  of 

Ohio,  and  at  all  said  times  it  had  and  has  an  interest,  by 
reason  of  a  mortgage  in  the  property  hereinafter  described, 
greater  than  the  amount  of  the  policy  hereinafter  mentioned. 
At  all  said  times  defendant  was  and  it  is  an  insurance  corpo- 
ration, duly  incorporated  and  existing  under  and  by  virtue  of 
the  laws  of  the  state  of  New  York,  and  having  at  all  said 
times,  ever  since  and  now,  an  office,  agency  and  general  agent 
doing  business  in  said  C. 

On  the day  of ,  18—,  at  said  C,  in  consideration 

of  $ theu  in  hand  paid  by  one  M.  E.  K.,  the  owner  in  fee- 
simple  of  the  premises,  subjiect  to  plaintiff's  said  mortgage 
hereinafter  described,  said  defendant  made,  executed  and  de- 
livered to  said  M.  E.  R,  who  was  then,  ever  since  has  been, 
and  is  a  resident  of  said  city  of  0.,  and  to  this  plaintiff,  a  policv 
of  insurance,  by  which  said  defendant  insured  said  M.  E.  RI, 
loss,  if  any,  payable  to  this  plaintiff  as  its  interest  might  ap- 
pear, in  the  sum  of  $ ,  against  loss  or  damage  by  lire  on 

her  frame  dwelling-house  in  the  rear  of  jS'o. R.  street  in 

said  C,  and  agreed  to  make  good  and  indemnify  said  M.  E.  R., 
and  this  plaintiff  as  its  interest  might  appear,  against  all  such 
immediate  loss  or  damage  as  might  happen  to  said  building 

by  fire  from  the day  of ,  18—,  at  noon,  to  the 

day  of ,  18 — ,  at  noon,  to  be  paid  sixty  days  after  proofs 

of  loss  made  by  said  M.  E.  R  were  received  at  tlie  otfice  of  the 
general  agency  of  said  comj)any  in  A^ew  York,  ^aid  M.  E.  R. 
iiud  this  plaintiff  have  complied  with  all  the  conditions  of  said 


QQS  INSL'KANCE FIRE.  [g  705.. 

policy  to  be  by  them  performed.     Afterwards,  to  wit,  on  the 

day  of ,  IS — ,  said  building  was  wholly  consumed  by 

fire.     Proofs  of  loss  were,  on  the day  of ,  18 — .  made 

out  in  accordance  with  the  terms  of  said  policy  and  deliv^ered 
to  said  defendant  at  said  New  York,  who  made  no  objection 
thereto;  the  delay  in  making  out  and  delivering  said  proofs 
of  loss  occurring  by  agreement  with  said  defendant.  At  the 
time  of  said  issuing  and  delivery  of  said  policy  and  of  the  ap- 
plication therefor  the  cash  value  of  said  building  was  agreed 
between  this  plaintiff,  said  M.  E.  K.  and  this  defendant  to  be 

$ ,  which  sum  was  then  and  there  the  real  cash  value 

thereof,  and  said  premium  so  paid  as  aforesaid  was  the  pre- 
mium for  said  period  on  said  sum.  Before  issuing  said  policy 
said  defendant's  agent  made  a  full  examination  and  descrip- 
tion of  said  building  and  fixed  its  insurable  value  at  $ . 

No  changes  were  made  in  said  building  affecting  said  value 
thereafter  and  before  said  fire.  Said  M.  E.  K.  has  assigned 
to  this  plaintiff  all  claim  she  may  have  against  said  defendant 
by  reason  of  the  premises. 

By  reason  of  the  premises,  on  the day  of ,  18 — , 

said  defendant  became  and  was  indebted  to  plaintiff  in  the 
sum  of  $ ,  and  it  became  and  was  the  duty  of  said  defend- 
ant to  pay  to  this  plaintiff  at  said  C.  said  sum  of  $ ,  which 

sum  this  plaintiff  then  and  there  demanded  of  said  defendant, 
but  defendant  refused  and  neglected  to  pay  the  same  or  any 
part  theref,  and  ever  since  has  failed  and  neglected  to  pay  the 
same  or  any  part  thereof,  although  often  thereto  requested  by 
plaintiff. 

Therefore  plaintiff  prays  judgment  against  said  defendant 

for  the  sum  of  $ ,  with  interest  thereon  from  the day 

of ,  18—.  M.,  N.  &  W., 

Plaintiff's  Attorneys. 

Note. —  From  Hanover  Fire  Ins.  Co.  v.  Citizens'  Savings  &  Loan  Ass'n, 
error  to  circuit  court  of  Cuyahoga  county,  Supreme  Court,  unreported,  No. 
1552. 

Sec.  705.  Petition  where  conditions  of  policy  as  to  proofs 
of  loss  not  complied  with  on  account  of  statements  of  ad- 
juster.— 

[Avenyients  as  in  ante,  sec.  70^.'] 

Plaintiffs  aver  that  they  have  fully  complied  with  and  per- 
formed the  agreements  and  conditions  contained  in  said  policy 
to  be  complied  with  and  performed  by  them,  or  so  far  as. 
from  the  nature  of  things  existing  they  could  comply  with  and 
perform  the  same. 

That  immediately  after  said  fire  they  gave  notice  in  writing 
to  said  defendant  of  said  loss  resulting  therefrom. 

That  shortly  thereafter  an  adjusting  agent  was  sent  by  de- 
fendant to  the  place  where  said  fire  occurred  to  examine  inta 


§  TOG.]  INSURANCE FIRE.  G69 

the  circumstances  of  said  fire  and  the  loss  and  destruction  of 
said  insured  property  thereby,  and  the  loss  and  damage  result- 
ing to  plaintiffs  therefrom, 'who,  after  making  said  examina- 
tion and  obtaining  information  and  evidence  in  regard  thereto, 
informed  plaintiffs  that  said  loss  was  covered  by  said  policy  and 
that  he  would  report,  recommend  and  advise,  Vithout  further 
proofs,  the  payment  of  $ for  the  loss  and  damages  sus- 
tained by  them.  That  in  consequence  of  such  information  from 
said  ad'justing  agent,  plaintiffs  delayed  for  some  time  the  fur- 
nishing of  the  proofs  of  loss  as  required  bv  the  conditions  of 
said   policy,  but  subsequently,  upon  learning  that  said  loss 

would  not  be  paid   by  defendant,  they,  under  date  of , 

18—,  made  out  in  writing,  duly  authenticated  and  certified, 
the  proofs  of  said  loss  as  required  by  the  conditions  of  said 
policy,  and  procured  the  same  to  be  forwarded  to  said  defend- 
ant at  its  office  in  K  O.,  La.,  and  the  same  was  so  forwarded 
to  and  received  by  it  at  its  office ,  18 — . 

Plaintiffs  aver  that  more  than  sixty  davs  have  elapsed  since 
the  receii)t  by  defendant  of  said  i)ro6fs  of  loss,  but  defendant 
has  wholly  neglected,  failed  and   refused  to  pay  said  sum  of 

dollars  as  by  the  terms  of  said  policv  it  was  required  to 

do,  or  any  part  of  the  same.  They  aver  that  their  said  loss 
and  damage  caused  by  the  burning  of  their  said  store-house 
and  stock  of  merchandise  is  $ and  more. 

They  therefore  ask  judgment  against  said  defendant  for 

said  sum  of dollars,  with  interest  thereon  from ,  18—. 

M.  &  K, 
Plaintiffs'  Attorneys. 

Note.—  From  Coleman  &  Co.  v.  Insurance  Co.,  49  O.  S.  310. 

Sec.  706.  Petition  on  policy  asking  for  equitable  relief 
against  mistake  by  inserting  wrong  name  of  iusnred,  and 
for  recovery  thereon. — 

[Caption  and  a'oerm.ents  as  in  ante,  sees.  701,  702.'] 

1.  The  plaintiff  says  that  on  the day  of ,  18—,  the 

plaintiff  was  the  owner  of  certain  store  furniture  and  fixtures, 
and  a  certain  stock  of  dry  goods,  hardware,  queensware,  hats, 
caps,  boots,  shoes  and  other  articles  not  more  hazardous,  as 
are  usually  kept  for  sale  in  country  stores,  and  all  contained 
in  the  first  and  second  story  of  the  iron  and  shingle  roofed 
frame  building  occupied  by  him  as  a  general  store,  and  situate 

on  the  north  side  of street,  in  the  town  of ,  in  the 

county  of  ,  Ohio. 

That  on  or  about  said  day  said  plaintiff  applied  to  a  dulv 
authorized  agent  of  defendant  company  foi-  insurance  agains'^t 
fire  in  said  company  on  said  furniture  and  fixtures  to  the 
amount  of  | ,  antl  upon  said  stock  to  the  amount  of  § , 


(370  INSURANCE FIRE.  [§  TOO.- 

and  thereupon,  in  consideration  of  8 then  and  there  paid 

to  said  agent,  the  said  defendant  company  agreed  to  issue  to 
him  a  policy  of  said  company  in  its  usual  form,  insuring  him 
against  loss  or  damage  by  fire,  etc.,  upon  said  property  to  the 

amount  aforesaid  from  said ,  IS — ,  at  noon,  and  for  the 

period  of  one  year  and  until ■,  IS — ,  at  noon. 

And  said  company  by  its  said  agent  afterwards  and  on  the 
same  day  delivered  "to  plaintiff  its  policy  No. •,  duly  exe- 
cuted by  its  president  and  secretary  and  countersigned  by 
said  agent,  the  original  of  which  is  hereto  attached,  in  pur- 
suance and  performance  of  said  contract,  and  the  same  was  so 
accepted  and  received  by  said  plaintiff,  and  the  same  was  not 
at  the  time  read  or  examined  by  the  plaintiff,  nor  did  he  know 
that  any  mistake  had  been  made  therein  by  said  agent  in  fill- 
ing out  the  policy  until  after  the  loss  of  said  property  by  fire 
as  hereinafter  and  in  the  next  count  stated. 

The  plaintiff  further  says  that,  by  mere  mistake  and  inad- 
vertence, in  the  blanks  provided  in  said  policy  for  the  name 
of  the  assured  to  be  written,  the  said  agent  wrote  the  name 
of  the  said  defendant  AV.  H.  L.,  and  described  him  as  the  as- 
signee of  said  plaintiff. 

The  plaintiff  therefore  prays  that  said  mutual  mistake  of 
the  parties  may  be  relieved  against  and  said  policy  made  to 
conform  to  the  intention  of  the  parties,  and  for  other  proper 
relief  in  the  premises. 

2.  On  the  day  aforesaid,  the  plaintiff  being  the  owner  of  the 
property  aforesaid,  in  consideration  of  the  premium  paid  by 
plaintiff  to  defendant  company  as  aforesaid,  said  defendant,  by 
its  policy  of  insurance  JS'o. ,  in  the  manner  aforesaid,  in- 
sured  the    plaintiff  against  loss  or  damage   by   fire   to   the 

amount  of  $ on  the  property  aforesaid  from at  noon 

to at  noon. 

Plaintiff  has  performed  all  the  conditions  of  said  policy  on 

his  part  to  be  performed,  and  on ,  18 — ,  said  property  was 

damaged  and  partl}^  destroyed  by  fire  and  otherwise  injured 

to  the  amount  of  s (and  said  defendant  company  at  once 

took  possession  of  said  property  and  excluded  the  plaintiff 
therefrom  for  the  period  of  seven  days). 

The  plaintiff  on  said ,1^—5  g'^'^^e  said  defendant  company 

notice  of  said  loss,  and  on ,  IS — ,  and  more  than  sixty 

days  prior  to  this  action,  gave  said  defendant  proofs  of  said 
loss  in  due  form.     No  part  of  said  loss  has  been  paid. 

Wherefore  plaintiff  prays  judgment  against  said  defendant 

company  for  $ and  interest  from ,  IS — ,  and  for  other 

proper  relief.  C.  D.  M.  and  B.  >S:  B., 

Attorneys  for  Plaintiff. 

Note.— See  Globe  Ins.  Co.  v.  Boyle,  21  O.  S.  119. 


§§   707,  TOS.]  INSURANCE  —  FIKE.  OTl 

Sec.  707.  Petition  for  reformation  of  a  Hint  of  policy 
and  judgment  for  amount. — 

[Avennetits  as  in  a7ite,  sees.  701,  702.] 

That  the  amount  of  insurance  agreed  upon  by  the  plaintiff 
and  defendant  at  the  time  of  the  payment  of  the  considera- 
tion was  the  sum  of  $ upon  store-room  and  stock  of  goods 

therein,  but  the  amount  of  $ was,  by  mistake  of  the  agent 

who  made  out  the  policy,  erroneously  inserted. 

That  on  the  day  of  ,  18 — ,  said  store-room  and 

stock  of  goods  was  totally  destroyed  by  fire. 

That  at  the  time  of  the  delivery  of  said  policy  to  plaintiff 
he  supposed  it  had  been  drawn  in  accordance  with  their  agree- 
ment, but  did  not  read  the  same,  and  did  not  learn  of  the  error 
therein  until  after  said  fire. 

That  said  store  and  stock  was  of  the  value  of  $ . 

That  on  the day  of ,  18 — ,  the  plaintiff  furnished 

defendant  with  proof  of  loss  by  said  fire,  and  has  in  all 
things  duly  performed  all  the  conditions  of  said  polic}^  on  his 
part  to  be  performed,  and  that  no  part  of  said  loss  has  been 
paid. 

Plaintiff  therefore  pra3^s  that  said  policy  ma}^  be  reformed 
by  inserting  therein  the  correct  amount  of  said  insurance  ac- 
cording to  said  agreement,  and  for  judgment  against  the  de- 
fendant for  the  sum  of  $ and  costs  of  suit. 

Note. —  A  contract  of  insurance  may  be  reformed  for  mutual  mistake. 
Evidence  of  the  agent  and  insurer  in  relation  to  the  object  of  the  poHcy 
and  the  interest  to  be  insured  is  admissible.  Globe  Ins.  Co.  v.  Boyle,  21 
O.  S.  119. 

Sec.  708.  Petition  by  trustees  of  fraternal  society  for 
loss  upon  property,  including  improvements,  on  real  estate 
held  under  lease. — 

Plaintiffs  say  that  they  are  trustees,  duly  chosen  and  quali- 
fied, of  the  Gibulum  Lodge  of  Perfection,  Ancient  Accepted 
Scottish  Eite,  and  that  said  Gibulum  Lodge  was,  at  the 
several  times  hereinafter  mentioned,  and  now  is,  one  of 
the  various  bodies  of  the  Ancient  Accepted  Scottish  Rite 
Masons ;  and  they  say  that  the  defendant,  the  Western  Insur- 
ance Company,  is  a  corporation  under  the  laws  of  the  state 
of  Ohio. 

The  plaintiffs  further  say  that  on  the  day  of  , 

18 — ,  at  the  city  of ,  defendant,  by  its  certain  policy  of 

insurance  duly  executed  on  that  day,  did  insure  the  masters 
and  wardens  of  IS'ova  Cesarea  Harmony  Lodge,  Ko.  2,  Free 
and  Accepted  Masons,  a  corporation,  against  loss  or  damage 

by  fire,  in  the  sum  of  dollars,  for  the   jieriod   of  

years  next  ensuing,  on  all  permanent  improvements,  fixtures 


672  INSURANCE FIKE.  [§708. 

and  repnirs  made  in  those  certain  apartments  and  portions  of 
a  certain  building-  known  as  the  Masonic  Temple,  situated  on 
the  nortlieast  corner  of  Third  and  Walnut  streets,  in  the  city 

of ,  Ohio,  occupied  by  the  various  bodies  of  the  Ancient 

Accepted  Scottish  Rite  Masons;  and  the  said  policy  did  pro- 
vide that  the  loss,  if  any,  thereunder,  should  be  payable  to 
the  trustees  of  Gibulum  Lodge  of  Perfection,  Ancient  Ac- 
cepted Scottish  Ilite,  said  lodge  being,  at  the  date  of  said 
policy,  and  at  the  present  time,  the  oivrier,  as  lessee  thereof^  of 
all  that  portion  of  said  building  described  as  aforesaid  in  said 
policy,  and  of  all  improvements,  fixtures  and  repairs  made  in 
the  apartments  of  said  building  occupied  by  the  various  bodies 
of  the  Ancient  Accepted  Scottish  Rite  Masons,  and  of  all 
frescoing  and  wall  decorations  thereof,  and  of  all  other  prop- 
erty covered  by  said  policy  of  insurance  —  said  Harmony 
Lodge  helng  the  owner  of  said  MasoniG  Tejnple,  but  having 
leased  the  said  portions  thereof,  hereinbefore  mentioned,  to 
said  Gibulum  Lodge,  wJiich,  as  lessee,  iinproved,  furnished  and 
decorated  the  same.  And  the  said  policy  did  further  ]^rovide 
the  privilege  of  additional  insurance  in  any  insurance  com- 
pany ;  and  also  of  making  necessary  alterations  and  repairs 
without  notice  or  extra  charge;  and  further,  that  said  policy 
should  apply  to  and  cover  all  frescoing  and  wall  decorations 
in  addition  to  other  items  hereinbefore  mentioned. 

Plaintiffs  further  say  that  it  came  to  pass  that  on  the 

day  of ,  18 — ,  all  of  the  said  property,  apartments  and 

portions  of  said  building,  hereinbefore  described,  were  totally 

destroyed  by  fire ;  and  thereafter,  to  wit,  on ,  18 — ,  and 

again,  the  day  of  ,   18 — ,  the  plaintiffs  caused  to 

be  made  and  delivered  to  the  defendant  proper  proof  of 
loss  of  said  building  as  required  b}'^  and  in  accordance  with 
the  terms  of  said  policy,  and  demanded  payment  of  the  same, 
which  the  defendant  has  failed  and  refused,  and  still  fails  and 
refuses,  to  pay,  although  by  the  terms  of  said  policy  this  de- 
fendant undertook  and  agreed  to  pay  any  loss  accruing  under 
said  policy  within  sixty  days  after  the  filing  with  said  com- 
pany of  said  proofs  of  loss. 

Plaintiffs  say  that  the  other  insurance  upon  the  property 
herein  mentioned,  including  policy  now  in  suit,  amounted  to 

dollars ;  that  the  total  amount  of  the  loss  or  damage 

sustained  by  said  Harmony  Lodge  upon  the  property  herein- 
before mentioned,  by  reason  of  said  fire,  is dollars  and 

cents ;  that  by  the  terms  of  said  policy  it  was  provided 

that,  in  case  of  total  loss,  the  amount  to  be  paid  by  the  de- 
fendant under  its  policy  aforesaid  should  not  exceed  a  greater 
proportion  than  the  amount  insured  in  said  policy  bears  to 
the  whole  amount  insured  on  the  property. 

Plaintiffs  say  that  said  Harmony  Lodge  has  observed  all 


§  709.]  INSURANCE  —  FIRE.  673 

the  terms  and  conditions  of  said  policy  of  insurance  incumbent 
upon  them,  and  ask  judgment  against  the  defendant  in  the 

sum  of dollars,  with  interest  thereon  from  the day 

of ,  18 — ,  and  costs,  H.,  J.  &  C, 

Attorneys  for  Plaintiffs. 

Note. —  From  Carson  v.  Western  Ins.  Co.,  error  to  Super.  Ct.  Cin,,  Su- 
preme Court,  unreported,  No.  1755. 

Sec.  709.  Fire  insurance — The  answer. —  If  a  loss  is 
caused  by  the  fraudulent  act  of  the  insured,  the  company  may 
set  the  same  up  as  a  defense  to  an  action  upon  the  policy.^ 
Where  a  company  takes  a  note  in  payment  of  a  premium  it  is 
estopped  from  setting  up  the  non-payment  thereof  in  case  of 
loss.2  "When  one  has  had  the  benefit  of  insurance,  and  the 
company  becomes  insolvent  and  goes  into  the  hands  of  a  re- 
ceiver, a  member  cannot  set  up  fraud  as  a  defense  after  rights 
of  innocent  creditors  have  intervened.^  Nor  can  the  company, 
in  the  absence  of  intentional  fraud  on  the  part  of  the  insured, 
in  case  of  a  total  loss  show  that  the  value  of  the  property  is 
less  than  that  fixed  in  the  policy.*  Nor  can  a  company  take 
advantage  of  the  failure  to  make  the  examination  of  the  prop- 
erty which  is  required  by  statute,  as  it  is  not  justified  in  re- 
lying upon  any  statement  of  the  insured  claiming  it  to  be 
fraudulent.^  Nor  can  persons  dealing  with  a  foreign  com- 
pany deny  its  power  to  enter  into  the  contract  sued  upon.^ 
Where  a  husband  and  wife  represent  that  they  are  the  joint 
owners  of  the  premises  insured,  the  policy  to  be  void  if  in 
fact  the  title  be  in  the  wife  alone,  no  recover}''  can  be  had  if 
this  representation  prove  false,  even  though  there  is  no  in- 
tentional fraud ; ''  and  a  false  representation  as  to  the  amount 
of  incumbrance  upon  the  premises  insured  will  avoid  the 
policy.^     It  is  immaterial  whether  the  misrepresentations  are 

1  Insurance  Co.  v.  Sherlock,  25  O.  S.  409.  Where  there  is  a  separate  valu- 
30.  ation  upon  different  things  the  con- 

2  Krumm  v.  Insurance  Co.,  40  O.  S.  tract  is  severable.  Insurance  Co.  v. 
230.  Ward,  50  Kan.  346 ;  31  Pac.  Rep.  1079. 

3  Mansfield  v.  Woods.  29  W.  L.  B.  » Insurance  Co.  v.  Leslie,  47  O.  S. 
Ill;     Newberg    Petroleum    Co.    v.  418;  R.  S.,  sees.  3643,  3644. 

Weare,  27  O.  S.  344 :  May  on  Ins.,  ^  Newberg  Petroleum  Co.  v.  Weare, 

sec.  552;  Lucas  v.  Granville  Ass'n,  20  27  O.  S.  344. 

O.  S.  339.     See  Rundle  v.  Kt-unau.  79  ^  Insurance  Co.  v.  Webster,  7  O.  C. 

Wis.  492;  48  N.  W.  Rep.  516.  C.  511. 

4  Insurance  Co.  v.  Leslie,  47  O.  S.  8  Hutchins    v.   Insurance    Co.,   11 

43 


674  INSURANCE  —  FIRE.  [§  709. 

intentionally  made,  as  they  will  in  any  event  avoid  the  policy, 
if  material.^  In  setting  up  a  defense  that  the  insured  con- 
cealed certain  matters  material  to  the  risk,  it  should  be  averred 
that  the  insured  knew  of  the  existence  of  the  fact  concealed, 
and  that  the  same  was  not  open  and  notorious  to  all  parties.^ 
Where  it  is  provided  that  the  prelimary  proof  of  the  loss 
must  be  furnished  within  a  certain  time,  failure  so  to  do  will 
constitute  a  defense  to  an  action  thereon.^  Nor  is  such  a  de- 
fense waived  by  setting  up  and  rel^'ing  upon  other  defenses 
not  inconsistent  therewith.* 

Where  the  condition  of  a  policy  is  that  all  subsequent  in- 
surance of  the  same  property  in  other  companies  will  render 
the  same  invalid,  the  taking  of  other  insurance  may  be  set  up 
by  the  company  as  a  valid  defense;'  but  there  can  be  no 
breach  available  to  the  company,  where  a  policy  contains  such 
condition,  by  taking  additional  insurance  which  for  any  reason 
is  invalid  or  never  took  effect.^  The  fact  that  a  mortgage  was 
given  without  the  consent  of  the  company  cannot  be  urged 
as  a  defense  to  an  action  on  a  policy  which  provides  that  the 
property  shall  not  be  sold,  transferred  or  any  change  made 
in  the  title  without  the  consent  of  the  company.^  The  con- 
sent of  an  agent  of  the  company  to  alienation  by  an  assignment 
upon  the  policy  has  the  same  effect  as  a  new  policy.^  A  condition 

O.  S.  480 ;  Davenport  v.   Insurance  Pa.  St  259.     It  is  not  a  defense  that 

Co.,  6  Cush.  340 ;  Howard  v.  Insur-  the  particulars  were  not  furnished 

ance  Co.,  10  Cush.  444 ;  Brown  v.  In-  until  a  year  after  the  loss,  if  that  be 

Burance  Co.,  11  Cush.  280 ;  Byers  v.  a  reasonable  time.     Kirk  v.  Insur- 

Insurance  Co.,  35  O.  S.  606.  ance  Co.,  6  W.  L.  B.  200. 

1  Byers  v.  Insurance  Co.,. 35  O.  S.  *  Insurance  Co.  v.  Railway  Co.,  28 
606 ;  Insurance  Co.  v.  Spankneble,  52  O.  S.  69.  As  to  what  constitutes 
111.  53 ;  Insurance  Co.  v.  Eddy,  55  other  insurance,  see  Kimble  v.  Insur- 
Dl.  213;  May  on  Ins.,  sec.  269.  ance  Co.,  8  Gray,  33;  Bigler  v.  In- 

2  Insurance  Co.  v.  Insurance  Co.,  1  surance  Co.,  22  N.  Y.  402;  Conway 
Handy,  408;  s.  c,  5  O.  S.  450.  Toll  Co.  v.  Hudson  Insurance  Co.,  12 

3  Insurance  Co.  v.  Frick,  29  O.  S.  Cush.  144. 

466 ;  Insurance    Co.   v.   Lindsey,   26  *  Knight  v.  Insurance  Co.,  26  O.  S. 

O.  S.  348.  664;  Insurance  Co.  v.  Holt,  85  O.  S. 

*  Insurance    Co.   v.   Frick,   supra.  189. 

But  it  is  otherwise  if  the  defenses  are  ^  Byers  v.  Insurance  Co.,  35  O.  S. 

inconsistent.     Insurance  Co.   v.  Ku-  606 ;  Insurance  Co.  v.  Spankneble,  52 

kral,  7  O.  C.   C.  362.     See  Railroad  111.  33 ;  Insurance  Co.  v.  Eddy,  55  III. 

Ga  V.  Insurance  Co.,  105  Mass.  570;  213;  May  on  Insurance,  sec.  269. 

Insurance    Co.  v.  Scholleberger,   \S  » Insurance  Co.  v.  Wall,  31  O.  S.  624 


§  709.J  INSURANCE  —  FIRE.  675 

as  to  change  of  ownership  is  not  invalidated  by  sale  of  stock 
during  the  life  of  the  policy,  where  it  has  been  reconveyed  to 
the  original  owner  before  loss.^  The  fact  that  the  premises  in- 
sured are  incumbered  by  dower  is  not  a  violation  of  a  con- 
dition against  an  incumbrance,  especially  where  the  applica- 
tion for  the  insurance  is  made  by  the  widow.^  Where  the 
conditions  of  a  policy  are  such  that  either  party  may  termi- 
nate it  upon  giving  notice,  the  same  may  be  terminated  by 
merely  giving  notice  without  returning  the  unearned  pre- 
mium.^ This  is  also  true  where  there  is  no  agreement  in  the 
policy  as  to  the  return  of  unearned  premiums ;  where  it  is  so 
provided  in  the  policy  the  rule  is  otherwise.^  The  fact  that 
the  premises  have  been  vacated  by  the  permanent  removal  of 
a  tenant  of  the  insured,  before  the  expiration  of  a  lease,  with- 
out the  knowledge  or  consent  of  the  landlord,  is  a  good  de- 
fense when  the  policy  is  conditioned  to  become  void  if  the 
premises  are  vacated.'  A  contract  of  insurance  with  an  infant 
being  only  voidable,  the  company  cannot  set  up  infancy  as  a 
defense  to  an  action  thereon.^  The  obligation  to  observe  the 
conditions  of  a  policy  rests  upon  the  insured  only ;  and  where 
the  loss  is  made  payable  to  a  third  party  who  is  a  tenant  in 
possession  of  the  building  insured,  the  action  of  the  latter  in- 
creasing the  risk  to  the  premises,  contrary  to  the  provisions 

See  Insurance  Co.  v.  Ashton,  31  O.  S.  not  such   alienation  as  vitiated  the 

477,    As  to  acts  of  agents  see  Wood  policy.     See  1  Wood  on   Insurance, 

on  Insurance,  sec.  407 ;  Pratt  v.  In-  sec.  330  et  seq. 

surance  Co.,  55  N.  Y.  505 ;  Insurance  2  Insurance  Co.  v.  Britton,  31  O.  S. 

Co.  V.  Wall,  31  O.  S.  633.     This  is  op-  488.     See  Insurance  Co.  v.  Webster, 

posed  to  Cockerill  v.  Insurance  Co.,  7  O.  C.  C.  511 ;  R.  S.,  sec.  8643. 

16  0. 148;  but  that  case,  holding  that  ;^  Insurance  Co.  v.  Breckeisen,  50 

verbal  agreements  with    respect  to  O.  S.  543 ;  30  W.  L.  B.  303 ;  Insurance 

insurance    are  invalid,   is   virtually  Co.  v.  Sammons,  11  Bradw.  230 ;  Wood 

overruled.     Insurance  Co.  v.  Kelly,  v.  Insurance  Co.,  126  Mass.  219;  In- 

24  O.    S.  345.     See  Insurance  Co.  v.  surance  Co.    v.   Reynolds,  36   Mich. 

Siiaw,  94  U.  S.  547;  May  on  Insur-  506;  Richards  on  Insurance,  sec.  157. 

ance,  sec.  41.  4  Insurance     Co.     v.     Breckeisen, 

1  Insurance  Co.  v.  Lewis,  1  O.  C.  C.  supra. 

79;  13  W.  L.  B.  592.     In  Lane  v.  In-  5  insurance  Co.  v.  Wells.  42  O.  S. 

surance  Co.,  13  Me.  44,  it  was  held  519 ;  Insurance  Co.  v.  Webster,  7  O. 

that    where    the    assured    sold    the  C.  C.  531. 

goods,  the  purchaser  keeping  theni  «Monahan    v.    Insurance    Co.,   18 

but  a  short  time,  then  conveying  the  Rep.  176;  12  W.  L.  B.  89;  Insurance 

same  back  to  the  assured,  there  was  Co.  v.  Noyes,  32  N.  H.  345. 


€76  INSURANCE FIRE.  [§  710. 

of  the  policy,  cannot  be  pleaded  as  defense  to  his  olaiin  for 
the  loss,  because  the  contract  of  the  company  is  with  the  in- 
sured.^ 

Sec.  710.  Answer  averring  breach  of  conditions. — 

1.  The  defendant  admits  that  at  the  various  periods  in  the 
petitipn  named  it  was  an  incorporated  company  organized 
under  the  laws  of  L.,  with  its  principal  otRce  and  place  of 
business  at  N.  O.  in  said  state,  and  with  an  agent  authorized 

to  transact  business  for  it  located  at  P.  in county,  Ohio. 

And  defendant  admits  that  under  date  of ,  IS — ,  acting 

through  its  said  agent,  L.  C.  D.,  it  issued  in  said county 

its  policy  of  insurance,  whereby,  in  consideration  of dol- 
lars paid  and  of  the  agreements  and  conditions  therein  con- 
tained, it  did  insure  H.  0.   &  Co.  in  the  amount  of  

dollars  on  the  property  described  in  the  petition  and  for  the 
period  in  the  petition  named.  Defendant  denies  each  and 
ever\^  allegation  in  the  said  petition  not  hereinbefore  expressly 
admitted  to  be  true. 

2.  The  said  policy  was  issued  and  was  accepted  by  the  as- 
sured upon  the  following  condition  and  agreement,  expressed 
therein,  to  wit:  \Copy.'\ 

In  applying  for  the  said  insurance  the  plaintiff,  the  assured, 
stated  and  represented  that  there  was  no  building  within  one 
hundred  feet  of  the  store-house  in  the  policy  described,  and 
that  the  said  store-house  belonged  to  and  was  the  property 
of  the  assured,  the  said  H.  C.  &  Co.  By  the  aforesaid  condi- 
tion of  the  policy,  the  said  statements  and  representations 
became  a  part  of  the  policy,  and  by  the  assured  were  war- 
ranted to  be  true.  There  was  a  building  within  the  distance 
aforesaid,  and  the  said  store-house  was  not  the  property  of 
the  said  H.  C.  &  Co.  Wherefore  the  said  policy  was  wholly 
void. 

3.  The  said  policy  was  issued  and  was  accepted  by  the  as- 
sured upon  the  following  condition  and  agreement,  expressed 
therein,  to  wit,  that  this  policy  shall  become  void :  "  If  the 
assured  is  not  the  sole  and  unconditional  owner  of  the  prop- 
erty.'' The  said  H.  C.  &  Co.,  the  assured,  were  not  the  sole 
and  unconditional  owners  of  the  said  store-house  at  the  time 
the  said  policy  was  issued. 

4.  The  said  policy  was  issued  and  was  accepted  by  the  as- 
sured upon  the  following  condition  and  agreement,  expressed 
therein,  to  wit,  that  this  policy  shall  become  void :  "  If  any 
building  intended  to  be  insured  stands  on  ground  not  owned 
in  fee-simple  by  the  assured."     The  said  store-house,  intended 

1  Sanford  v.  Insurance  Co.,  13  Cush.  jury.  Insurance  Co.  v.  Insurance 
541.     It  is  often  a  question  for  the    Co.,  5  O.  S.  450. 


§711.]  INSURANCE  —  FIRE.  677 

to  be  insured  by  the  said  policy,  stood  on  ground  not  owned 
in  fee-simple  by  the  assured,  11.  C.  &  Co. 

5.  The  said  policy  was  issued  and  was  accepted  by  the  as- 
sured upon  the  following  conditions  and  agreements,  expressed 
therein,  to  wit:  that  ''loss  under  this  policy  shall  not  be  due 
and  payable  until  sixty  days  after  the  receipt  of  proofs  in  due 
form,  nor  until  a  full  compliance  with  the  requirements  of  this 
policy  in  respect  to  proofs,  statements,  examinations  or  a[> 
praisals  has  been  made  by  the  assured,"  and  that  "  jS^o  suit  or 
action  against  this  company  for  the  recovery  of  any  claim  by 
virtue  of  this  policy  shall  be  sustainable  in  any  court  of  law  or 
equity  until  after  full  compliance  by  the  assured  with  all  the 
foregoing  requirements."  The  plaintiffs,  the  assured,  have  not 
complied  with  the  said  requirements  of  the  said  policy,  therein 
expressed,  in  that  they  did  not  within  the  time  hmited  in  the 
said  policy,  to  wit,  as  soon  as  possible  after  the  alleged  loss, 
nor  at  any  time,  make  out  and  deliver  such  particular  state- 
ment and  account  of  said  alleged  loss  as  is  required  by  said 
policy,  and  did  not,  as  required  by  said  policy,  furnish  a  de- 
tailed estimate  of  disinterested  appraisers,  made  under  oath, 
as  to  the  loss  upon  the  said  store-house,  and  did  not,  as  re- 
quired by  said  policy,  furnish  a  detailed  schedule  and  inven- 
tory showing  the  quantities,  qualities  and  costs  of  the  various 
articles  of  personal  property  and  merchandise  alleged  to  have 
been  destroyed.  W.  &  W., 

Attorneys  for  Defendant. 

Note.—  From  Coleman  v.  Insurance  Co.,  49  O.  S.  310. 

Sec.  711.  Answer  setting  up  fraudulent  representations 
and  concealment  as  to  incumbrances  by  insured.— 

1.  For  defense  to  this  action  defendant  says  that  by  the  terms 
of  said  policy  of  insurance  it  w^as,  among  other  things,  stipu- 
lated and  agreed  that  the  defendant  should  not  be  liable  on 
said  policy  of  insurance  if  there  should  be  any  false  represen- 
tation as  to  the  condition,  situation  or  occupancy  of  said  prop- 
erty, or  if  there  should  be  any  misrepresentation  whatever  by 
the  assured,  or  if  the  interest  of  the  assured  in  the  property 
be  not  truly  stated  in  the  application,  which  is,  by  agree- 
ment of  said  parties,  a  part  of  the  contract  of  insurance,  and 
a  warranty  by  the  assured  of  the  truth  of  the  facts  therein 
stated. 

Defendant  says  that  plaintiff,  A.  C,  in  the  application  for 
said  insurance,  falseh^  represented  that  said  property  was  un- 
incumbered, save  by  a  mortgage  for  $ ,  and  falsely  repre- 
sented that  he  was  the  absolute  owner  of  said  property,  sub- 
ject only  to  said  mortgage  for  $ .  whereas,  in  fact  and  in 

truth,  said  property  was  at  that  time  incumbered  by  mort- 
gage in  the  amount  of  $ (and  interest  on  said  sum  at  eight 

per  cent,  for  a  length  of  time  not  known  by  this  defendant); 


OTS  INSURANCE  —  FIRE.  [§712. 

and  said  C.  was  not  the  owner  of  said  property,  subject  only 

to  said  mort,^age  for  % ,  all  of  which  was  well  known  to 

said  A.  C,  but  was  wholly  unknown  to  the  defendant.  And 
by  reason  of  said  misrepresentation  and  the  failure  of  said  as- 
sured to  truly  state  his  interest  in  said  property,  said  policy 
of  insurance  is  wholly  void  and  of  no  force  and  effect  what- 
ever. 

2.  Defendant  says  that  the  policy  of  insurance  sued  on  in 
this  action  was  issued  by  defendant  to  said  A.  C.  upon  his 
written  application  therefor,  and,  by  the  agreement  of  the  par- 
ties to  said  policy,  said  application  was  to  be  a  part  of  the  con- 
tract of  insurance,  and  a  warranty  by  the  assured  of  the  truth 
of  the  matter  therein  stated.  And  defendant  says  that  by  the 
terms  of  said  policy  and  application,  it  was  further  stipulated 
and  agreed  that  any  omission  to  make  known  every  fact  ma- 
terial to  the  risk  should  render  the  said  policy  void. 

Defendant  says  said  A.  C.  omitted  to  make  known  to  defend- 
ant that  said  property  was  incumbered  by  mortgage  to  the 
amount  of  | ,  and"^  unpaid  interest  thereon,  oi'  was  incum- 
bered more  than  $ .     Defendant  says  that  said  property 

was  incumbered  to  the  extent  of  $ (and  unpaid  interest 

thereon,  the  amount  of  which  is  to  defendant  unknown),  by 
mortgage  valid  and  subsisting,  as  said  A.  C.  well  knew  when 
he  applied  for  said  insurance,  but  said  fact  was  wholly  un- 
known  to  defendant.  The  fact  of  said  property  being  so  in- 
cumbered was  material  to  the  risk,  and  said  A.  C.'s  omission 
to  make  said  fact  known,  by  the  terms  of  said  policy  and 
agreement  of  the  parties  thereto,  avoids  the  same. 

3.  Defendant  says  that  the  policy  of  insurance  sued  on  in 
this  action  was  issued  by  the  defendant  to  the  said  A.  C.  upon 
his  written  application  tlierefor,  and  by  the  agreement  of  the 
parties  to  said  policy  said  application  was  to  be  a  part  of  the 
contract  of  insurance,  and  warranty  by  the  assured  of  the 
truth  of  the  matter  therein  stated.  And  defendant  says  that, 
by  reason  of  the  premises,  said  policy  of  insurance  has  become 
void,  and  plaintiff  ought  not  recover  thereon.  Wherefore  de- 
fendant asks  to  be  dismissed  with  its  costs. 

Note.— The  action  of  a  solicitiug  agent  in  wrongfully  stating  facts  cor- 
rectly given  him  bv  assured  binds  the  company.  Insurance  Co.  v.  Williams, 
39  O.  S.  584.  He  is  the  agent  of  the  company  and  not  of  applicant.  R  S.,  sec. 
3644 :  Savings  Bank  &  B.  Ass'u  v.  Insurance  Co.,  31  Conn.  517.    And  is  acting 


ry 

Sec.  712.  Answer  that  policy  is  invalidated  by  reason  of 

sale  of  property  insured,  and  judgment  against  same.— 

Defendant  says  that,  among  other  things,  it  was  expressly 
agreed  and  provided  by  said  policy  (and  contract  of  insur- 
ance), that  if  said  property  should  be  sold,  transferred  or  in- 


§713.]  INSURANCE  —  FIRE.  679 

cumbered  by  mortgage  or  otherwise,  or  levied  on,  or  any 
change  should  take  i)lace'  in  the  title  or  possession  thereof, 
whether  by  judicial  decree  or  voluntary  transfer,  without  the 
written  consent  of  the  defendant  company,  the  policy  of  in- 
surance should  be  void. 

Defendant  says  that  after  said  policy  was  issued  as  afore- 
said, A.  C,  the  assured,  on  the day  of ,  18 — ,  and  on 

the darv  of ,  18 — ,  executed  and  delivered  to  K.  K, 

W.  "W.  and'l.  C.  his  certain  mortgage  on  said  property  as 

stated  in  the  petition.     On  said day  of ,  18 — ,  said 

A.  C.  further  incumbered  said  premises  by  executing  and  de- 
livering to  J.  H.  a  mortgage  thereon  to  secure  said  H.  the 
payment  of  $ . 

bn  the day  of ,  IS — ,  as  set  forth  in  the  petition, 

the  said  A.  C.  sold  to  the  plaintiff  C.  Y.  C.  all  his  right,  title 
and  interest  in  and  to  that  part  of  the  personal  property  cov- 
ered by  said  policy  of  insurance  yet  owned  by  said  A.  C,  and 
transferred  to  said  C.  Y.  C.  all  his  interest  in'said  property  so 
remaining,  and  said  remaining  j)art  of  personal  property  ever 
since  the  said day  of ,  IS — ,  has  been  in  the  posses- 
sion of  said  C.  Y.  C. 

By  the  consideration  of  the  common  pleas  court  of : 

county,  Ohio,  J.  H.,  having  recovered  two  judgments  against 
the  said  A.  C.  and  another,  caused  executions  to  be  issued 

thereon,  which  executions  were,  on  the day  of ,  18 — , 

duly  levied  on  the  property  insured  by  said  policy,  and  so  said 

property  became  incumbered  to  the  extent  of  $ debt,  and 

costs  $ . 

R  R.  recovered  two  judgments  against  the  said  A.  C.  and 

others  by  the  consideration  of  the  said county  common 

pleas  court  and  caused  executions  to  issue  thereon,  which  said 

executions  were  dul}^  levied  on  said  property  on  the day 

of ,  18 — ,  and  thereby  said  property  became  incumbered 

to  the  amount  of  | . 

And  defendant  says,  by  reason  of  the  premises,  said  policy 
of  insurance  has  become  void  (and  was  void  from  the  begin- 
ning), and  plaintiffs  ought  not  to  recover  thereon  against  this 
defendant. 

Wherefore  defendant  asks  to  be  dismissed  with  its  costs. 

Note.—  From  Ohio  Farmers"  Ins.  Co.  v.  Haines,  ante,  sec.  703.  A  provis- 
ion to  tlie  effect  that  a  sale  or  transfer  shall  forfeit  a  policy  will  not  avoid 
the  policy  unless  the  assured's  entire  interest  is  sold.  Blackwell  v.  Insurance 
Co.,  48  O.  S.  533. 

Sec.  713.  Answer  that  mortgagee  has  ample  security  in 
real  estate,  and  that  the  policy  became  vohl  because  of 
breach  of  condition  as  to  premises  becoming  vacant. — 

1.  The  defendant  for  answer  to  plaintiff's  petition  admits 
that  })laintift'  and  defendant  are  corporations  as  alleged.     Ad- 


680  INSUKAXCE  —  FIRE.  [§  714. 

mits  that  defendant  insured,  for  the  consideration  named  in 
plaintiff's  petition,  the  house  of  M.  E.  E.  for  the  time  named 
in  said  petition,  and  that  said  policy  of  insurance  was  made 
payable  to  plaintiff  as  its  interest  might  appear.  Defendant 
says  that  plaintiff  had  made  to  M.  E.  R.  a  loan  upon  the 
premises  on  which  said  dwelling  was  situated,  and,  as  addi- 
tional security  to  the  mortgage  received  by  plaintiff,  took  the 
conditional  assignment  in  said  policy  written ;  and  this  defend- 
ant avers  on  information  and  belief  that  the  real  estate  cov- 
ered by  said  mortgage  securing  plaintiff  is  ample  security,  and 
that,  by  reason  of  said  condition  written  in  said  policy,  plaintiff 
has,  and  obtained,  no  interest  in  said  policy,  and  for  want  of 
knowledge  this  defendant  denies  all  further  assignment  of 
said  ]wlicy  to  plaintiff,  and  denies  that  there  was  any  consid- 
eration for  any  other  or  further  assignment,  and  denies  that 
plaintiff  has  any  interest  in  any  loss  sustained  by  said  M.  E.  R. ; 
and  defendant  denies  that  said  dwelling  was  of  the  value  of 

$ ,  and  denies  that  the  same  was  wholly  consumed  by  fire, 

and  denies  all  allegations  in  said  petition  contained  not  herein 
admitted. 

2,  For  a  second  defense  this  defendant  says  that,  by  the 
terms  and  conditions  of  the  policy  issued  by  this  defendant 
upon  the  dwelling-house  of  said  M.  E.  R,  said  policy  be- 
came void  and  was  void,  and  of  no  force  or  effect  on  , 

18 — ,  for  this  defendant  says  it  was  provided  in  said  policy 
that  if  said  house  became  vacant  and  unoccupied  without  the 
written  consent  of  defendant,  then  and  in  ever}'  such  case 
the  said  policy  shall  be  void;   and  defendant   says  that  on 

and  prior  to ,  18 — ,  the  said  frame  dwelling-house  had, 

without  the  Avritten  consent  of  this  defendant,  become  vacant 
and  unoccupied,  whereby  said  policy  became  and  was  void 
and  of  no  effect  at  and  prior  to  the  time  of  said  fire  so  alleged 
in  plaintiff's  petition;  whereupon  defendant  asks  to  go  hence 
without  costs.  E.,  I).  <fe  S., 

Defendant's  Attorneys. 

Note. —  From  Hanover  Ins.  Co.  t.  Citizens'  Savings  &  L.  Ass'n,  error  to 
circuit  court  of  Cuyahoga  county,  No.  1553.  An  absolute  condition  that 
policy  shall  be  void  "if  the  building  be  vacated  or  left  unoccupied  "  avoids 
the  policy,  although  a  tenant  vacates  before  expiration  of  his  lease  without 
knowledge  or  consent  of  landlord.  Insurance  Co.  v.  Wells,  43  O.  S.  519. 
See,  also,  Walsh  v.  Insurance  Co.,  73  N.  Y.  5. 

See.  714.  Answer  claiming  fraudulent  concealment  of 
interest  of  and  false  representations  as  to  occupancy  of 
premises,  and  breach  of  provision  as  to  notice  of  loss. — 

jFirst.     That  heretofore,  to  wit,  on  the day  of  , 

18 — ,  defendant  issued  a  policy  of  insurance  to  plaintiff;  that 
said  policy  was  in  writing,  and  was  substantially  as  set  forth  in 
plaintiff's  petition ;  that  said  policy  was  issued  to  plaintiff  in 


§  714.]  ^  INSUKANCE FIKE.  681 

consideration  of  $ and,  of  the  conditions  and  limitations 

therein  set  forth,  and  that  among  the  conditions  and  stipula- 
tions set  forth  in  said  policy,  as  more  fully  set  out  in  plaintiff's 
petition,  is  the  following:  [Copy  clause  of  policy  as  to  require- 
ment 07'  condition  of  descrip>tion  of  property.'] 

But  this  defendant  says  that  the  interest  of  the  assured  in 
the  property  intended  to  be  insured  by  this  policy  was  not 
truly  stated  to  the  defendant,  but  was  wilfully  concealed,  in 
that  said  property  was  conveyed  and  incumbered  by  two  or 
more  deeds  of  mortgage;  and  defendant  says  that  the  interest 
of  the  assured  in  said  property  is  not  the  entire,  unconditional 
and  sole  ownership  of  said  property;  but  plaintiff  says  that  said 
property  had  been  conveyed  by  said  plaintiff  by  several  mort- 
gage deeds,  which  were,  at  the  date  of  the  issue  of  said  policy 

and  continued  until  the  time  of  the  fire  on  the day  of 

,  18 — ,  liens  and  incumbrances  on  said  property,  to  the 

extent  of  its  entire  value. 

[False  representations  as  to  occupancy  of  premises.'] 
Second  defense.  The  defendant  [formal  averment],  and  fur- 
ther says  that,  among  other  things  represented  to  the  defend- 
ant at  the  time  said  policy  of  insurance  wac  procured,  was  that 
the  buildings  desired  to  be  insured  were  occupied  by  the  in- 
sured and  family  as  a  dwelling  and  saloon  and  for  no  other 
purposes ;  and  defendant  says  that  said  buildings  were  occu- 
pied as  a  public  dance  hall,  and  were  leased  to  societies,  to  wit, 
the  second  story  thereof,  and  that  such  representations  made 
by  plaintiff  as  to  the  occupancy  of  said  premises,  as  heretofore 
set  forth,  were  false,  were  known  by  plaintiff  to  be  false,  and 
were  made  for  the  purpose  of  defrauding  the  defendant. 
[Breach  of  conditioiis.] 

Third  defense.  The  defendant  [form,al  averme?it]  further 
says  that  among  other  terms,  conditions  and  agreements  in 
said  policy  was  the  following,  to  wit :  "  When  a  fire  has  oc- 
curred injuring  the  property  herein  described,  the  assured 
shall  give  immediate  notice  of  the  loss  in  writing  to  this  com- 
pany, and  within  fifteen  days  after  the  fire,  unless  the  time 
be  extended  by  the  company  in  writing,  shall  render  to  the 
company,"  etc.  And  said  defendant  says  that  the  plaintiff 
did  not  render  to  the  defendant,  within  fifteen  days  after  the 
fire,  a  particular  statement  of  the  loss,  signed  and  sworn  to 
by  the  assured,  stating  such  knowledge  or  information  as  the 
assured  had  been  able  to  obtain  as  to  the  origin  and  circum- 
stances of  the  said  fire,  and  also  stating  the  title  and  interest 
of  the  assured  and  of  all  others  in  the  property,  the  cost 
value  thereof,  the  amount  of  loss  or  damage,  all  other  insur- 
ance covering  any  of  said  property,  and  a  copy  of  the  written 
parts  of  all  policies,  and  the  occupation  of  the  entire  premises; 
and  defendant  says  that  the  time  for  surrendering  such  state- 


'682  INSURANCE  —  FIRE.  [§715. 

ment  was  not  extended  bv  the  defendant,  and  defendant  de- 
nies that  it  waived  the  rendering  of  said  statement  within 
fifteen  days  and  bv  any  act  of  defendant  prevented  plaintiff 
from  com|)iying  with  that  provision  of  the  policy. 

Fourth  defense.  And  for  a  fourth  defense  herein  the  de- 
fendant refers  to  each  and  all  of  the  allegations  contained  in 
the  first,  second  and  third  defenses  and  makes  them  a  part 
hereof  as  fully  and  completely  as  though  written  at  length 
herein ;  and  defendant  further  says  that  it  is  a  corporation  or- 

fanized  under  the  laws  of  the  state  of  Pennsylvania,  and  it 
enies  each  and  every  other  allegation  and  statement  con- 
tained in  said  petition. 

Therefore  this  defendant  asks  to  be  dismissed  with  its  costs. 

J.  O.  W., 
Atrtorney  for  Defendant. 

Note. —  From  United  Fireman's  Ins.  Co.  v.  Kukral.  error  to  circuit 
court  of  Cuyalioga  county.  No.  1(599,  37  W.  L.  B.  311. 

Sec.  715.  Answer  by  assignee  of  policy  held  as  collateral 
security. — 

\^Caption!\ 

That  ever  since  the day  of ,  18 — ,  he  has  been  and 

now  is  the  })ona  fide  owner  and  holder  of  a  certain  promis- 
soiy  note,  of  which  the  following  is  a  true  copy,  to  wit : 
\Copy  of  note  of  the  assured,  with  indorsements.'] 

That  there  is  due  to  this  answering  defendant  from  said 

F.  K.  and  M.  K.,  upon  said  promissory  note,  the  sum  of  % , 

with  interest  at  the  rate  of  per  cent,  on  $ r-  thereof 

from ,  18 — ;  on  $ thereof  at per  cent,  from 

,  IS — ;  on  $ thereof  from .  18 — ,  and  on 

$ fi'om ,  18—. 

That  to  secure  the  payment   of  said  promissory  note,  said 

M.  K.,  the  plaintiff  in  this  action,  did  on  the day  of , 

18 — ,  assign  and  transfer  to  this  answering  defendant,  as  col- 
lateral security,  the  sum  of  dollars  of  her  claim  against 

the  defendant,  the   U.   F.   Insurance  Company  of  ,  set 

forth  in  the  petition  herein,  and  that  on  the  said day  of 

18 — ,  this  answering  defendant  duly  notified  said  U.  F. 

Insurance  Compa"  y  of  said  assignment  and  transfer.  By  rea- 
son of  the  premises  this  answering  defendant  claims  a  valid 
and  subsisting  lien  for  the  payment  of  the  amount  due  him 
upon  said  promissory  note  from  said  defendants,  F.  and  M.  K., 

to  the  extent  of  dollars,  upon  the  claim  of  said  M.  K. 

against  said  U.  F.  Insurance  Company,  set  forth  in  the  peti- 
tion herein,  and  prays  the  court  for  the  protection  of  the 
same.  '  F.  K, 

Defendant's  Attorney. 


§  716.]  INSURANCE  —  FIEE.  683 

Sec.  716.  Reply  by  insured  that  breach  of  conditions  was 
waived  by  company. — 

And  now  comes  said  plaintiff,  the  Citizens'  Savings  and 
Loan  Association,  by  M..  N .  &  W.,  its  attorneys,  and  for  reply 
to  the  second  defense  contained  in  the  answer  filed  herein  by 
said  defendant,  the  H.  Fire  Insurance  Company,  says: 

It  denies  each  and  every  averment  therein  contained. 

Further  repl3Mng  to  said  second  defense,  said  plaintiff 
says : 

Said  policy  contained  the  following  provisions  and  no  other 
on  the  subject  of  the  occupancy  of  said  premises:  "or  if  the 
above-mentioned  premises  shall  be  occupied  or  used  so  as  to 
increase  the  risk,  or  become  vacant  and  unoccupied,  or  the 
risk  be  increased  by  the  erection  of  adjacent  buildings,  or  by 
any  other  means  whatever,  within  the  knowledge  or  control 
of  the  assured,  without  the  written  assent  of  the  company 
indorsed  hereon,  then  and  in  every  such  case  this  policy  shall 
be  void."  Said  building  was  situated  on  the  rear  part  of  the 
lot  on  which  said  M.  E.  R.  resided,  and  at  the  time  said  policy 
was  issued  was  occupied  by  her  tenants,  all  of  which  was  then 
well  known  to  the  general  agent  of  said  defendant  who  issued 
to  her  said  ])olicy,  and  without  whose  countersigning  said 
policy  was  not  valid.  Afterwards  without  consent  of  said 
M.  E,  E.,  and  without  her  power  to  prevent  the  same,  said 
tenants  left  said  house.  She  at  once  notified  said  general 
agent  thereof,  who  told  her  that  it  was  all  right  and  he  would 
call  and  see  her  at  her  house  in  a  few  days,  and  thereby  pre- 
vented her  from  then  insisting  on  written  consent  being  in- 
dorsed on  said  policy  or  obtaining  other  insurance.  Plaintiff 
avers  that  said  defendant  l^y  said  general  agent  waived  said 
clause,  consented  to  said  house  so  remaining  vacant  until  he 
saw  her,  and  induced  her  and  this  plaintiff  to  believe  said 
policy  in  force.  Xo  one  did  call  on  said  M.  E.  E.  on  behalf 
of  said  defendant  or  said  general  agent  until  after  said  fire, 
which  occurred  a  few  days  after  said  notice  to  said  general 
agent.  In  the  meantime  said  M.  E.  R.  had  commenced  to 
move  into  said  house  from  her  residence  on  the  front  of  said 
lot,  and  at  the  time  of  said  fire  had  moved  part  of  her  furni- 
ture therein  and  was  occupying  it  during  the  business  hours 
of  the  day  by  placing  and  arranging  therein  said  furniture, 
and  also  during  said  hours  and  others  for  other  living  pur- 
poses. Said  temporary  vacancy  occurred  and  existed  entirely 
from  causes  beyond  the  control  of  said  M.  E.  R  Plaintiff 
avers  that  said  ])remises  never  w^re  unoccupied  within  the 
time,  intent  and  meaning  of  said  policy,  that  defendant  as- 
sented to  such  vacancy  and  uon-occupancv  as  did  occur,  and 
is  estopped  from  asserting  such  vacancy  and  non-occupancy 


684  INSUKAIJCE FIRE.  [§  7J6. 

as  a  defense  herein,  and  that  such  vacancy  and  non-occupancy 
as  there  had  been  had  ceased  before  said  fire  occurred. 

M.,  K  &  W., 
Plaintiff's  Attorneys. 

Note. —  The  burden  of  proof  of  waiver  is  on  the  plaintiff.  An  agent  may 
waive  by  parol.  If  assured  has  notice  of  limitation  of  agent's  power,  or  if 
there  is  anything  to  put  him  on  inquiry  as  to  his  actual  authority,  then  acts 
in  excess  of  authority  are  not  binding.  Wood  on  Fire  Ins.,  sec.  411.  By 
accepting  policy  containing  express  limitation  of  agent's  authority,  the  as- 
sured is  estopped  from  setting  up  powers  in  opposition  to  those  expressed. 
Catoir  v.  Insurance  Co.,  33  N.  J.  L.  487 ;  66  N.  Y.  274-380.  See  May  on  In- 
surance, sec.  138;  Kyte  v.  Assurance  Co.,  144  Mass.  46;  Hale  v.  Insurance 
Co.,  6  Gray,  169;  Worcester  v.  Insurance  Co.,  11  Cush.  265.  A  waiver  even 
in  writing'  by  the  agent  on  his  books  is  held  not  binding.  Walsh  v.  Insur- 
ance Co.,  73  N.  Y.  5.  Questions  which  are  left  unanswered  by  an  applicant 
are  waived  by  the  underwriter.    Insurance  Co.  v.  McCulloch,  21  O.  S.  176. 


CHAPTER  49. 


INSURANCE  —  LIFE. 


Sec.  723.  Defenses  tx)  action  on  life 
insurance  policy. 

Answer  that  death  was 
caused  by  unlawful  act. 

Answer  of  failure  to  pay 
premiums. 

Answer  that  insured  made 
false  answers  to  interrog- 
atories as  to  condition  of 
his  health. 


r24. 


725. 


726. 


Sec  717.  Parties. 

718.  Actions  on    life    insurance 

policy. 

719.  Petition  on  mutual  protec- 

tive policy. 

720.  Petition  on  mutual  benefit 

policy. 

721.  Petition    by    administrator 

or  executor  on  policy  in- 
suring decedent. 

722.  Petition   by  widow  on  life 

insurance  policy  of  hus- 
band. 


Sec.  717.  Parties, —  AVhere  the  beneficiaries  named  in  a 
policy  die  before  the  assured,  the  policy  reverts  to  the  latter 
and  becomes  subject  to  administration,  upon  which  suit  must 
be  brought  by  an  administrator.^  If  it  be  payable  to  the  as- 
sured, his  executors,  administrators  and  assigns,  for  the  bene- 
fit of  third  persons,  suit  should  also  be  brought  by  the  personal 
representative.-  A  person  who  has  obtained  valid  insurance 
upon  his  own  life  may  dispose  of  it  to  whom  he  pleases,  in 
the  absence  of  prohibitory  legislation  or  contract  stipulation, 
even  though  the  assignee  has  no  insurable  interest.''  One  not 
a  party  to  a  policy  cannot  seek  to  rescind  or  avoid  it,  nor  to 
recover  back  premiums  paid  thereon,  although  he  may  have 
effected  the  policy.^ 

Sec.  718.  Actions  on  life  insurance  policy. —  Under  the 
code  the  heirs  or  legal  representative  of  any  member  or 
policy-holder  ma}'  prosecute  an  insurance  company  for  losses 


iRyan  v.  Rothweiler,  50  O.  S.  595. 

2  Greenfield  v.  Insurance  Co.,  47 
N.  Y.  430 ;  Tripp  v.  Insurance  Co.,  55 
Vt  100. 


Eckel    V.    Renner,  41   O.  S.   232; 

Valton  V.  Insurance  Co.,  20  N.  Y.  32. 

■«  Insurance  Co.  v.  Wright,  33  O.  S. 

534;   Insurance  Co.  v.  Wilson,    111 

Mass.  542. 


686  INSURANCE LIFE.  [§  718. 

which  occur  on  any  risk,  if  payment  be  withheld  more  than 
two  months  after  the  same  become  due.*  The  contract  be- 
tween the  parties  must  be  considered  and  construed  as  an  or- 
dinary contract.-  To  set  forth  a  cause  of  action  upon  a  policy 
of  life  insurance,  the  petition  should  contain  a  statement  of 
the  contract,  the  death  of  the  assured,  and  failure  to  pay  as 
agreed ;  an  allegation  that  the  death  of  the  assured  was  not 
caused  by  the  breaking  of  any  conditions  of  the  policy  is  not 
necessary,  and  does  not  require  proof;  nor  is  the  plaintiff 
bound  to  anticipate  the  defense  which  the  defendant  may  set 
up.'  But  where  the  plaintiff  relies  upon  the  provisions  of  a 
statute  of  a  state  where  the  defendant  company  was  organ- 
ized, to  avoid  the  effect  of  a  forfeiture  for  non-payment  of 
premiums,  he  must  aver  facts  bringing  his  case  within  such 
provisions.*  Where  a  policy  is  void  by  reason  of  uninten- 
tional misrepresentations,  an  action  will  lie  to  recover  pre- 
miums paid  thereon.*  Where  a  company  refuses  to  receive 
premiums  on  the  ground  that  the  policy  has  lapsed  for  non- 
payment of  the  premiums  at  the  time  stipulated,  the  assured 
may  go  into  a  court  of  equity  to  have  the  rights  under  the 
policy  determined,  and  compel  the  company  to  receive  the 
premiums  thereon.^  The  beneficiary  of  a  policy  may  ask  to 
have  a  mistake  as  to  age  corrected  where  there  was  no  fraud, 
and  maintain  an  action  to  recover  on  the  policy  as  corrected.^ 
In  an  action  upon  a  certificate  of  membership  of  a  mutual 
insurance  company  which  entitles  the  beneficiary  to  so  much 
as  may  be  realized  from  one  assessment,  the  petition  need  not 
aver  the  number  of  members  of  the  company  against  whom 
assessments  may  be  made.®  Other  questions,  such  as  plead- 
ing conditions,  insurable  interest  and  attaching  copies,  have 
been  discussed  in  a  former  section  and  are  equally  applicable 
here.^ 

1 R  S.,  sec.  3601.  5  Insurance  Co.  v.  Pyle,  44  O.  S.  19. 

^  Insurance  Co.  v.  Pyle,  44  O.  S.  ^  Insurance  Co.  v.  Tullidge,  89  O.  S. 

19 ;  McEvoy  v.  K  Mut.  Ins.  Co.,  3  O.  240. 

C.  C.  573.  7  Life  Ins.   Co.   v.  Goodale,  8  Am. 

3  Hall  V.  Scottish   Rite  K.   T.  &c.  Law  Rec.  338. 

Ass'n,  6  O.  C.  C.    141,  quoting  from  *  Elkhart,     etc.     Relief    Ass'n    v. 

Boone's  Pleading,  sec.  156.  Houghton,    103   Ind.   286;  Excelsior 

*  Scheifers    v.   Insurance    Co.,   46  Mut  Aid  Ass'n  v.  Riddle,  91  Ind.  84. 

O.  S.  418.  9  A7ite.  sees.  57,  699. 


§719.]  INSURANCE LIFE.  687 

Sec.  719.  Petition  on  mutual  protective  policy. — 

The  plaintiff,  C.  S.,  says  that  the  defendant,  the  M.  Y. 
Mutual  Relief  Association,  is  an  association  of  persons  duly- 
incorporated  under  the  laws  of  the  state  of  Ohio,  for  the  pur- 
pose of  paying  stipulated  sums  to  the  family  or  heirs  of  its 
members  and  others  named  in  its  policies. 

The  plaintiff  further  says  that  at  the  request  of  said  defend- 
ant, A.  S.,  the  husband  of  said  plaintiff,  became  insured  in  the 

second  division  of  said  association,  on  the day  of  , 

18-—;  and  in  consideration  of  the  sum  of  dollars  then 

paid  by  said  A.  S.,and  the  further  consideration  to  pay  certain 
death  and  other  assessments  that  he  might  be  called  upon  to 
pay  by  said  defendant  company,  said  defendant  delivered  to 
him  its  written  and  printed  agreement  (a  true  copv  of  which 
is  hereto  annexed  as  an  exhibit  only),  whereby  it  agreed  and 
promised  that  after  due  notice  and  satisfactory  proof  of  the 
death  of  said  A.  S.,  and  within  sixty  days  thereafter,  it  would 

pay  to  this  plaintiff,  the  wife  of  said  A.  S.,  the  sum  of 

dollars  from  the  death  fund. 

In  case,  however,  the  death  fund  of  said  division  at  the  date 
of  such  death  shall  be  less  than  that  sum,  then,  and  in  that 
case,  a  sum  equal  to  the  amount  actually  received  from  one 
death  assessment  upon  all  the  members  of  said  division  at  the 
time  of  such  death. 

That  said  association  promised  and  agreed  to  keep  and  main- 
tain, at  all  times,  a  death  fund,  subject  to  the  payment  of 
death  losses,  equal  to  the  largest  sum  payable  on  the  death  of 
a  member. 

Plaintiff  says  that  on  the day  of .  18—,  said  A.  S. 

died,  and  on ,  18 — ,  said  defendant  was  dulv  notified,  and 

satisfactory  proof  thereof  was  made  to  the  officers  of  said 
defendant  corporation. 

Plaintiff  says  that  at  the  date  of  the  death  of  A.  S.,  the 
death  fund  of  said  second  division  amounted  at  least  to  the 

sum  of dollars,  and  said  association  were  bound  to  have 

said  sum  on  hand  to  pay  the  same,  and,  as  plaintiff  avers,  did 
have  that  sum  on  hand  as  a  death  fund  from  which  to  pay 
death  losses;  and  ought,  in  accordance  with  the  terms  of  said 
agreement,  to  have  paid  the  said  sum  to  the  plaintiff  within 
sixty  days  thereafter. 

But  plaintiff  avers  that  said  defendant  has  not  paid  said  sum 
or  any  part  thereof. 

Plaintiff  says  that  said  defendant  is  indebted  to  her  in  the 

sum  of  dollars,  with  interest  thereon  from  ,  18 — , 

and  for  which  sum  and  costs  she  i)rays  judgment. 

J.  &  M.,  Plaintiff's  Attorneys. 

Note.—  From  Mahoning  Valley  Mutual  Relief  Ass'n  v.  Seyler,  error  to 
circuit  court  of  Mahoning  county,  Ohio.  No.  1495.  The  right  to  sue  canuot 
be  taken  away  by  contract.  Coiincil  v,  Garrigus,  104  Ind.  133;  Bauer  v. 
iSanison  Lodge,  102  Ind.  262;  Supreme  Council  v.  Forsinger.  125  Ind.  53. 


688  INSDRANCE— LIFE.  [§§720,721. 

Sec.  720.  Petition  on  mutual  benefit  policy. — 

Plaintiff  says  that  defendant  is  a  corporation  created  and 
existing  under  tlie  laws  of  the  state  of  Illinois,  and  doing  busi- 
ness and  having  a  place  of  business  in  the  state  of  Ohio.    That 

on  the day  of ,  IS — ,  the  defendant  in  consideration 

of  the  payment  of  the  usual  membership  fee,  and  agreement 
to  pay  an  annual  expense  assessment  and  such  mortuary  assess- 
ments as  may  be  levied,  issued  to  one  J.  O.  a  certificate  of 

membership,  being  No. ,  a  copy  of  which  certificate  is 

hereto  annexed  and  marked  "Exhibit  A,"  upon  the  terms  of 
which  certificate  defendant  promised  and  agreed  to  pay  to 
plaintiff  herein,  in  case  of  death  of  said  J.  O.,  all  that  shall 
have  been  collected  from  one  assessment  upon  the  members 
of  said  association,  after  first  making  provision  for  the  guaranty 
fund,  provided  that  such  indemnity  fund  so  to  be  paid  shall  in 

no  event  exceed  the  sum  of dollars,  and  to  pay  said  sum 

of  money days  from  the  receipt  of  satisfactory  proofs  of 

death.   That  on  the day  of ,  18—,  at  B.,  Pa.,  the  said 

J.  O.  died ;  that  proofs  of  death  were  furnished  on  or  about 
,  18—. 

Plaintiff  further  says  that  plaintiff  and  said  J.  O.  had  each 
performed  all  the  conditions  of  said  certificate  on  their  part 
to  be  performed :  that  defendant,  although  requested,  has  not 
paid  said  sum  of  money  nor  any  part  thereof. 

Wherefore  plaintiff  f)rays  judgment  against  said  defendant 

in  the  sum  of dollars. 

H.  L.  B.,  Attorney  for  Plaintiff. 

Note.—  From  Total  Abstinence  Life  Ass'n  of  America  v.  O'Harra,  Su- 
preme Court,  unreported,  No.  3357. 

Sec.  721.  Petition  by  administrator  or  executor  on  pol- 
icy insuring  decedent. — 

1.  {^Averment  of  corporate  character  of  company.'] 

2.  \_Averment  of  appointment  of  administrator  or  eosecutor.] 
That  on  the day  of ,  18—,  in  consideration  of  the 

sum  of  $ then  paid  by  plaintiff's  decedent  to  defendant, 

and  of  the  further  agreement  by  said  decedent  to  pay  to  said 

defendant  company  the  sum  of'^l as  an  annual  premium, 

said  defendant  company  did  execute  and  deliver  to  the  said 
decedent  its  certain  policy  of  insurance  upon  his  life  (a  copy 
of  which  is  hereto  attached  as  an  exhibit  only),  said  defend- 
ant thereby  contracting  to  insure  the  life  of  said  decedent  in 

the  sum  of  $ ,  and  thereby  agreed  to  pay  to  the  estate  of 

said  A.  B.,  deceased,  the  sum  of  | .     [Here  state  such  terms 

of  policy  as  seem,  essential.] 

That  on  the  day  of  ,  18—,  the  said  A.  B.  died 

from [state  cause  of  death],  and  not  within  any  of  the 

causes  excepted  in  and  by  the  terms  of  said  policy,  by  which 


,§  722.]  INSURANCE  —  LIFE.  6S9 

it  was  provided  it  would  not  pay  a  death  loss  in  case  death 
resulted  therefrom. 

That  the  said  A.  B.,  during  his  life-time,  fully  and  completely 
complied  with  all  the  terms  and  conditions  of  said  policy  of 
insurance,  and  this  plaintiff,  as  his  legal  representative,  has 
likewise  complied  with  all  conditions  to  be  by  him  performed, 
and  has  made  proof  of  the  death  of  the  said  A.  B.,  deceased, 
in  accordance  with  the  terms  of  said  policy. 

There  is  therefore  due  and  owing  this  plaintiff,  as  such  ad- 
ministrator, upon  said  policy  of  insurance,  the  sum  of  $ , 

for  which  he  asks  judgment. 

Sec.  122.  Petition  by  widow  on  life  insurance  policy  ol 
husband. — 

[Averment  of  corporate  caj?aciiy.'] 

Plaintiff  states  that  she  is  the  widow  of  A.  B.,  late  of  the 

city  of  C,  county  of ,  Ohio,  who  died  at  C.  on  the 

day  of ,  18 — . 

That  during  the  life-time  of  her  said  husband  he  entered 

into  a  contract,  to  wit,  on  the day  of ,  18 — ,  with  the 

defendant  company,  by  which,  in  consideration  of  the  sum  of 

$ then  by  her  said  husband,  A.  B.,  paid  to  said  defendant 

company  as  a  first  premium,  and  of  the  further  agreement  on 
the  part  of  her  said  husband,  A.  B,,  that  he  would  pay  to  said 

defendant  the  sum  of  %■ each  and  every  year  as  an  annual 

premium  so  long  as  said  contract  should  remain  in  force,  said 
defendant  company  thereupon,  by  its  written  contract  of  in- 
surance, duly  executed  and  delivered  to  said  A.  B,  upon  the 
date  aforesaid,  did  agree  and  contract  by  its  policy  of  insur- 
ance, a  copy  of  which  is  annexed  hereto  as  an  exhibit  onlv,  to 

insure  the  life  of  said  A.  B.  in  the  sum  of  $ ,  the  losspa}'-- 

able  upon  the  death  of  said  A.  B.  to  this  plaintiff  as  his  widow. 
[Here  may  he  stated  any  terms  of  policy  deemed  essential.'] 

That  as  before  stated  said  A.  B.  died  on  the day  of 

,  18 — ,  and  that  he  did  during  his  life-time  punctually  pay 

all  premiums  upon  said  policy  and  perform  all  and  singular 
the  conditions  of  said  policy  to  be  by  him  kept  and  performed, 
and  that  plaintiff  as  his  widow  complied  with  all  conditions 
and  requirements  thereof,  so  far  as  were  required  of  her,  and 

did  on  the day  of ,  18 — ,  duly  notify  said  defendant 

company  of  the  death  of  her  said  husband,  presenting  said  com- 
pany with  proofs  thereof,  as  required  by  said  policy  of  insurance. 

That  plaintiff  as  such  widow  has  demanded  ])ayment  of  the 
amount  due  her  upon  said  policy  of  insurance  from  said  com- 
pany, which  it  has  failed  and  refused  to  pay  and  still  refuses 
so  to  do. 

There  is  therefore  due  said  plaintiff  from  said  defendant 

upon  said  policy  of  insurance  the  sum  of  $ ,  for  which  she 

asks  judgment. 
44 


690  INSURANCE LIFE.  [§723. 

Sec.  723.  Defenses  to  actions  on  life  insurance  policies. — 

Non-payment  of  premiums  at  the  appointed  time,^  misrepre- 
sentation made  by  the  assured  as  to  age  -  or  as  to  other  insur- 
ance,^ or  fraud,^  or  as  to  the  use  of  intoxicating  liquors,'  will 
avoid  the  policy  and  discharge  the  insurer.  But  the  denial 
of  having  a  certain  disease  will  not  be  such  misrepresenta- 
tion as  will  invalidate  a  policy  unless  there  were  such  S3^mp- 
toms  as  would  reasonably  indicate  the  disease.^  Nor  will  a 
wife  be  barred  of  her  right  of  action  on  a  policy  which  is 
her  exclusive  property,  by  the  fraud  or  misrepresentation  of 
her  husband.'  But  by  statute  in  Ohio  companies  are  estopped, 
after  having  received  three  annual  premiums  on  a  policy, 
from  defending  upon  any  ground  other  than  fraud;  they  can- 
not urge  any  error,  omission  or  misstatement  of  the  assured 
excepting  as  to  age.^  A  policy  issued  upon  answers  and  state- 
ments warranted  to  be  true,  but  which  are  in  fact  false, 
though- unintentionally  so,  is  nevertheless  void.**  If  a  com- 
pany fails  to  give  the  accustomed  notice  of  the  time  when  the 
premium  falls  due,  it  cannot  urge  the  non-payment  of  the 
premium  as  a  defense  to  an  action  therein.^"  Suicide  may  be 
a  defense,  but  t?ie  onus  is  upon  the  company  to  show  that 
death  was  within  such  a  proviso  of  the  policy."  If  insanity 
be  relied  on  to  meet  the  defense  of  suicide  it  must  be  specially 
pleaded.'-  When  a  defense  made  by  a  mutual  aid  society 
that  the  class  to  which  the  assured  belonged  was  not  filled  at 
the  time  of  his  death,  and  that  certain  assessments  have  not 
been  paid,  is  controverted  by  reply,  it  must  be  affirmatively 
proven  by  the  defendant.'"  Under  a  general  denial  a  defend- 
ant cannot  show  that  death  resulted  from  intentional  injury." 

1  Robert  V.  Insurance  Co.,  IDisn.  355.        ^R  S.,  sec.  3626.     See  Lowe  v.  lu- 

2  Low  V.  Insurance  Co.,  10  Am.  Law    surance  Co.,  41  O.  S.  273. 

Eec.  313.  9  Insurance  Co.  v.  Pyle,  44  O.  S.  19. 

3  Penniston  v.  Insurance  Co.,  4  W.  i*  Insurance  Co.  v.  Smith,  44  O.  S. 
L.  B.  935.  156. 

4  Insurance  Co.  v.  Sandal,  3  W.  L.  ii  Schultz  v.  Insurance  Co.,  42  O.  S. 
B.  559.  217. 

5  Insurance  Co.  v.  Holterhoff,  2  C.  ^^ychultz  v.  Insurance  Co..  4  W.  L. 
S.  C.  R.  379.  B.  848. 

6  Insurance  Co.  v.  Reif,  1  W.  L.  B. ,  13  Hall  v.  Aid  Association,  6  O.  C.  C. 
290.  137 ;  Boone's  Pleadings,  sec.  156. 

■^  Insurance  Co.  v.  Applegate,  7  O.  S.       i*  Coburn  v.  Insurance  Co.,  145  Mass. 
293.  "  225. 


§§  724-726.]  INSURANCE  —  life.  691 

A  company  after  having  recognized  a  beneficiary  for  a  num- 
ber of  years  cannot  be  permitted  to  deny  his  right  to  sue  on 
a  poh'cy.^  And  so  will  a  company  which  receives  payments 
on  policies  after  the  time  at  which  they  fall  due  be  estopped 
from  claiming  forfeiture  by  reason  of  non-payment;-  and  the 
company  is  bound  by  representations  made  by  their  duly  au- 
thorized agents  within  the  scope  of  their  authority.'  "Where 
the  defense  in  an  action  on  a  life  policy  is  that  the  policy  had 
lapsed  for  non-payment  of  premiums,  and  that  the  assured 
had  procured  it  to  be  reinstated  by  representations  as  to  his 
health  which  he  knew  at  the  time  were  false,  defendant  must 
prove  that  the  assured  knew  such  representations  to  be  false.* 

Sec.  724.  Answer  that  death  was  caused  by  unlawful  act. 

[Caption  and  formal  averments.'] 

That  it  is  provided  in  the  pohcy  of  insurance  sued  on  that 
if  the  assured  should  die  by  reason  of  his  violation  of  the  laws 
of  any  of  the  states  or  of  the  United  States,  then  the  policy 
should  be  null  and  void. 

That  said  assured  came  to  his  death  as  follows:  [State facts 
shoioing  violation,  of  lau)  and  cav.se  of  death.'] 

Sec.  725.  Answer  of  a  failure  to  pay  premiums. — 

[Caption  and  formal  a-cermerds.] 

That  it  is  provided  in  said  policy  sued  on  that  it  is  given  in 

consideration  of  the  semi-annual  premium  of dollars,  to  be 

paid  before  noon  on  the day  of ,  18 — ,  and ,  18 — , 

and  that  upon  a  failure  to  pay  any  of  said  semi-annual  instal- 
ments on  or  before  the  days  mentioned,  said  policy  should 
cease  and  determine,  and  all  rights  under  said  policy  should 
be  forfeited. 

That  the  instalment  of  said  premium  notes  falling  due  on 

the day  of ,  18 — ,  was  not  paid  on  or  before  it  fell 

due  [but  was  still  unpaid  at  the  time  of  the  death  of  the  in- 
sured]. 

Sec.  726.  Answer  that  insured  made  false  answer  to  in- 
terrogatories as  to  condition  of  his  health. — 

Defendant  says  that  the  application  of  the  said  J.  O.  to  this 
defendant,  upon  which  said  certificate  and  policy  sued  on  was 
issued,  in  answer  to  interrogatories  therein  contained  the  said 

1  Insurance  Co.    v.    Hamilton,   41  5  Insurance  Co.  v.  "Wright,  33  O.  S. 
O.  S.  274.  533. 

2  Insurance  Co.  v.  Tullidge,  39  O.  S.  ^  Patten  v.  U.  Life  Ins.  Ass'n,  24  N. 
244;   Insurance  Co.    v.    Doster,    106  Y.  S.  269  (1893). 

U.  S.  30 :  Insurance  Co.  v.  Rudwig, 
11  Ins.  Law  J.  603. 


692  msuEANCE  —  life.  [§  726. 

J.  O.  stated  that  at  the  time  said  application  was  made  he 
was  in  good  health :  that  he  had  not  then  and  never  had  had 
any  lung  difficulty ;  that  none  of  his  brothers  or  sisters,  father 
or  mother  had  died  of  consumption  or  any  disease  of  the 
lungs.  He  also  in  said  application  stated  that  he  had  never 
been  rejected  by  any  insurance  company. 

At  the  time  said  statements  were  made  they  were  all  and 
each  of  them  false  and  untrue,  and  were  known  to  be  so  by  the 
said  J.  O.  at  the  time  he  made  them:  and  they  were  made  by 
the  said  J.  O.  for  the  purpose  of  defrauding  this  defendant.  ' 

Two  sisters  of  said  J.  O.  died  of  lun^  disease.  At  the 
time  said  application  was  made  the  said  J.  O.  had  consump- 
tion, and  he  knew  it ;  of  which  disease  he  died  at  the  time 
alleged  in  the  petition.  He  had  made  application  to  an  insur- 
ance company  aild  been  rejected  but  a  short  time  before  he 
made  the  application  upon  which  this  policy  was  issued  for 
the  reason  that  he  had  disease  of  the  lungs.  Said  statements 
were  the  basis  upon  which  said  policy  was  issued,  and  this  de- 
fendant is  not  liable  upon  said  certificate  and  policy,  and 
prays  to  be  discharged  and  recover  its  costs  herein. 

J.  H.  N.,  Attorney  for  Defendant. 


CHAPTEE  50. 


INTERPLEADER 


Sec  727.  Interpleader  —  Nature  and 
extent  of  the  remedy. 
728.  Form  of  petition  in  inter- 
pleader. 


Sec.  728a.  Answer  to  obtain  order  in- 
terpleading and  discharg- 
ing defendant  on  pay- 
ment into  court 


Sec.  727.  Interpleader  —  Nature  and  extent  of  the  rem- 
edy,—  A  bill  of  interpleader  is  a  bill  filed  for  the  protection 
of  a  person  from  whom  several  persons  claim  legally  and 
equitably  the  same  thing,  debt  or  duty,  but  who  has  incurred 
no  independent  liability  to  any  of  them,  and  does  not  himself 
claim  an  interest  in  the  matter.^  The  ground  of  jurisdiction 
is  the  apprehension  of  danger  to  the  person  seeking  the  rem- 
edy, from  doubtful  and  conflicting  claims,  and  the  only  relief 
to  which  he  is  entitled  is  to  have  liberty  to  pay  the  money  to 
the  persons  entitled  to  it.-  The  code  interpleader  invokes 
neither  the  common-law  nor  chancery  powers  of  the  court 
by  an  original  common-law  or  chancery  action.  The  jurisdic- 
tion conferred  on  the  court  is  purely  statutory.' 

In  an  action  upon  a  contract,  or  for  the  recovery  of  per- 
sonal property,  a  defendant  therein  may  make  an  aflBdavit 
that  a  third  party  has  or  makes  a  claim  to  the  subject  of  the 
action,  and  that  he  is  ready  to  pay  or  dispose  of  the  same  as 
the  court  ma}^  direct.  The  court  may  then  make  an  order  for 
the  safe-keeping  or  for  the  payment  or  deposit  in  court  of 
the  subject  of  the  action,  or  the  delivery  thereof  to  such  per- 
son as  it  may  direct,  and  also  an  order  requiring  such  third 
person  to  appear  in  a  reasonable  time  and  maintain  or  relin- 
quish his  claim  against  defendant.  If  such  third  party  fails  to 
appear,  the  court  ma}^  then  declare  him  barred  of  all  claims 


1  Sherman  v.  Partridge,  1  Abb.  Pr. 
256. 

2Newhall  v.  Castins,  70  111.  156; 
Cogswell  T.  Armstrong,  77  111.  139 : 


Insurance  Co.   t.  Insurance  Co.,  23 
Minn.  7. 

3  Bridge  v.  Martin,  3  W.  L.  M.  204 ; 
Board  v.  Scoville,  13  Kan.  17;  O. 
Code,  sees.  5016,  5017. 


634  INTERPLEADER.  [§  727. 

against  the  defendant.     But  if  he  appears,  he  may  be  allowed 
to  make  himself  a  defendant  in  lieu  of  the  original  defendant, 
who  shall  then  be  discharged  from  all  liability  upon  com- 
pliance with  the  order  of  the  court  for  the  payment,  deposit 
or  delivery  of  the  subject  of  the  action.^     An  officer  against 
whom  an  action  is  brought  to  recover  personal  property  taken 
by  him  on  execution,  or  the  proceeds  of  such  property  sold 
by  him,  may  have  the  benefit  of  this  provision  against  the 
party  in  whose  favor  the  execution  issued.-     In  such  a  case 
the  court  may  upon  application  of  the  defendant,  or  of  tlu' 
party  in  whose  favor  the  execution  or  attachment  issued,  per- 
mit the  latter  to  be  substituted  as  defendant.'    Two  claimants 
to  a  trust  may  be  required  to  interplead,  so  as  to  enable  the 
court  to  ascertain  the  beneficiary,  without  compelling  either 
party  to  establish  his  legal  right.*    A  bailee  may  protect  the  in- 
terest of  the  real  principal  by  an  interpleader,'  and  a  corpo- 
ration may  maintain  a  bill  of  interpleader  against  opposing 
claimants  to  a  dividend  due  on  shares  of  stock.*     In  an  action 
by  a  corporation  to  cancel  certificates  of  stock  which  have 
been  wrongfully  issued,   all  the  holders   thereof  should  be 
united  so  as  to  remove  the  cloud  upon  the  title  of  the  holders 
of  the  genuine  certificates^    In  an  action  to  enjoin  the  en- 
forcement of  a  judgment  by  an  assignee  thereof,  where  it  is 
claimed  that  there  are  several  parties  claiming  the  fund,  the 
plaintiff  should  bring  the  fund  necessary  to  pay  the  same 
into  court,  and  make  all  claiming  it  parties,  and  call  upon 
them  to  interplead.^    A  defendant  cannot  take  issue  with  the 
plaintiff,  and  at  the  same  time  have  the  benefit  of  an  inter- 
pleader.    The  two  are  inconsistent,  and  he  must  elect  between 
them.^     Actions  of  interpleader,  it  is  said,  ought  not  to  be  en- 
couraged, and  ought  not  to  be  brought  except  where  there  is 
no  other  way  for  the  plaintiff  to  protect  himself  from  a  litiga- 
tion in  which  he  has  no  interest.     To  maintain  the  action  it 
is  necessary  to  show  tjiat  the  plaintiff  has  not  acted  in  a  par- 

1 0.  Code,  sec.  5016.  '  Railway  Co.  v.  Bank,  -22  W.  L.  B. 

2  O.  Code,  sec.  5017.  248. 

8  O.  Code,  sec.  5018.  ^  Liniman  v.  Dimnick,  1  O.  C.  C. 

♦Presbyterian  Society  v.  Presbyte-  563. 

rian  Society,  25  O.  S.  128.  9  Johnson   v.  Oliver,  51  O.  S.  — ; 

5  McKay  v.  Draper.  27  N.  Y.  256.  31  W.  L.  B.  133. 

6  Mills  V.  Townsend.  109  Mass.  115. 


g  728.]  INTERPLEADER.  695 

tisan  manner  as  between  the  different  claimants.^  The  party- 
seeking  relief  must  have  incurred  no  independent  liability  to 
either  claimant;-  if  he  denies  his  liability  for  part  of  the 
claim  of  the  contestants,  his  position  is  not  one  of  indiffer- 
ence, and  he  cannot  avail  himself  of  the  remedy.^ 

Sec.  728.  Form  of  petition  in  interpleader. — 

Plaintiff  is  a  corporation  organized  under  the  laws  of  the 
United  States  and  carrying  on  a  banking  business  at . 

That  on  the  day  of  ,  IS — ,  a  money  deposit  ac- 
count, No. ,  was  opened  with  the  said  bank  in  the  name 

of  Cigar-makers'  Union,  "  subject  to  the  order  of  the  president, 
financial  secretary  and  treasurer,  or  any  two  of  them,"  and  a 
deposit  book  was  given  therefor,  bearing  the  number  of  said 
account,  in  which  debits  and  credits  have  been  from  time  to 
time  made,  and  there  now  stands  to  the  credit  of  said  account 
the  sum  of  $ . 

That  both  T.  C.  and  H.  S.  claim  to  be  president,  S.  J.  and 
E.  L.  K.  to  be  financial  secretary,  and  G.  F.  and  T.  M.  D.  to  be 
treasurer  of  said  Cigar-makers'  Union. 

That  the  said  T.  C,  S.  J.  and  G.  F,  have  demanded  and 
claim  that  the  amount  to  the  credit  of  said  deposit  account 
shall  be  paid  to  their  order,  or  to  the  order  of  any  two  of  them 
in  their  above-mentioned  respective  official  capacities,  and  that 
the  said  H.  S.,  E.  L.  K.  and  T.  M.  D.  likewise  have  demanded 
and  claim  that  the  same  shall  be  paid  to  their  order,  or  the 
order  of  any  two  of  them  in  their  above-mentioned  respective 
official  capacities. 

That  plaintiff  is  unable  to  decide  between  the  aforesaid 
conflicting  claimants,  and  while  ready  and  anxious  to  pay  or 
hold  the  amount  appearing  on  the  books  of  plaintiff  to  the 
credit  of  said  deposit  account,  to  or  for  the  use  of  the  true 
owner  or  owners,  plaintiff  cannot  safely  make  any  payments 
on  account  thereof,  or  recognize  either  of  said  conflicting 
claims,  until  the  questions  involved  therein  are  settled  author- 
itatively by  some  court  of  competent  jurisdiction. 

That  the  said  T.  C,  C.  J.  and  G.  F.,  in  their  aforesaid  re- 
spective capacities  of  president,  financial  secretary  and  treas- 
urer of  said  Cigar-makers'  Union,  by  W.  P.  W.,  their  attor- 
ney, have  already  instituted  suit  in  the  court  of ,  in 

the  state  of  Ohio,  against  plaintiff  for  the  recovery  of  said 
deposits,  and  plaintiff  is  apprehensive  of  a  like  suit  on  the 
part  of  the  aforesaid  adverse  claimants  thereof. 

1  Hinckley  v.  Pfister,  83  Wis.  64,  85;  par.  421 ;  Conly  v.  Ala.  G.  C.  I.  Ca, 
Cook,  S.  &  S.,  sees.  387,  407,  540,  544 ;  67  Ala.  472 ;  James  v.  Pritchard,  7  M. 
McDonald   v.   Allen,    37  Wis.    108 ;     &  W.  216. 

Buffalo  G.  S.  Co.  v.  Alberger,  22  3  Cogswell  v.  Armstrong.  77  111. 
Hun,  349,  353.  139 ;  Patterson  v.  Perry,  14  How.  Pr. 

2  Adam's  Eq.  200 ;   Bispham's  Eq.,    505 


696  INTERPLEADER.  [§  728^. 

That  plaintiff  has  no  claim  or  interest  whatever  in  said  de- 
posits, and  desires  and  tenders  payment  of  the  amount  of  the 
same  into  this  court  under  this  proceeding. 

Wherefore  the  plaintiff  prays  that  the  said  T.  C,  C.  J.  and 
G.  F.  on  the  one  part,  and  the  said  H.  S.,  E.  L.  K.  and  T.  M.  D. 
on  the  other  part,  may  interplead  and  adjust  their  said  sev- 
eral demands  and  claims  between  themselves,  plaintiff  being 
willing  and  desirous  that  the  sum  appearing  on  its  books  to 
the  credit  of  the  account  above  mentioned  should  be  paid  to 
such  of  the  defendants  as  shall  be  entitled  thereto. 

That  in  the  meantime  the  said  T.  C,  C.  J  and  G.  F.,  and 
the  said  H.  S.,  E.  L.  R.  and  T.  M.  D,,  their  counsel,  solicitors, 
agents  and  attorneys,  may  be  restrained  by  the  order  and  in- 
junction of  this  honorable  court  from  prosecuting  or  com- 
mencing any  action  or  actions  at  law  against  plaintiff  for  or 
in  respect  of  the  several  matters  aforesaid ;  and  that  plaintiff 
may  have  such  other  and  further  relief  as  his  case  may  require. 

[  Ve7''iji cation.'] 

Sec.  728a.  Answer  to  obtain  order  interpleading  and  dis- 
charging defendant  on  payment  into  court. — 

T.  Z.,  by  way  of  interpleader  herein,  upon  his  oath  says : 

That  he  is  the  defendant  [or,  the  president,  07\  cashier  of 
the  defendant]  above  named  [or  otherwise  state  relation  to  the 
cause,  indicating  means  of  knowledge']. 

[Here  indicate  caiise  of  action  on  contract  or  for  recovery  of 
sjpecifc  real  or  personal  j[>7'operty.] 

That  the  claims  of  the  plaintiff  and  of  said have 

been  made  without  collusion  of  this  defendant  with  either  of 
them;  and  that  the  defendant  has  no  interest  in  the  sum  [or, 
property]  claimed,  except  to  pay  [or,  deliver]  to  the  person 
rightfully  entitled  thereto ;  that  he  cannot  safely  determine  to 
which  of  said  claimants  it  should  be  paid  [or,  delivered],  and 
is  ready  and  willing  to  deposit  the  same  [or,  to  deliver  the 
same  as  the  court  may  direct]  upon  being  discharged  from 
liability  to  either  claimant  [and  if  discharge  of  a  lien  on  de- 
fendant's property  is  involved,  rnay  add,  as  thus:  and  upon 
said  mortgage  being  discharged  of  record]. 

Wherefore  this  defendant  asks  an  order  requiring  the  par- 
ties to  this  action  to  show  cause  why  he  should  not  be  per- 
mitted to  deposit  the  said  sum  of  money  [or,  property]  with 
the  clerk  of  this  court,  and  that  he  be  discharged  from  further 
liability  herein. 

Note.—  R.  S.,  sec.  5016. 


CHAPTER  51. 

INTOXICATING  LIQUORa 


Sec  729.  Liability  for  causing  intox- 
ication. 
730.  Petition  by  widow  for  dam- 
ages to  her  support. 


Sec.  731.  Petition  by  person  intoxi- 
cated against  liquor  seller. 


See.  729.  Lialbility  for  causing  intoxication. — A  statutory 
liability  is  imposed  upon  one  who  causes  the  intoxication  of 
another,  by  compelling  him  to  pay  a  reasonable  compensa- 
tion to  any  one  who  may  take  charge  of  or  provide  for  such, 
intoxicated  person,  and  authorizes  a  recovery  therefor  in  a 
civil  action.^  A  husband,  wife,  child,  parent,  guardian,  or 
other  person  liable  to  be  so  injured  thereby,  upon  giving  no- 
tice as  provided  by  statute  to  a  person  so  furnishing  liquors, 
or  to  the  owner  or  lessors  of  the  premises  where  the  same 
are  sold,^  may  maintain  an  action  severally  or  jointly  against 
any  person  or  persons  who  have  caused  such  intoxication  in 
whole  or  in  part ;  and  the  owner  of  the  premises  who  rents 
the  same  with  knowledge  that  the  liquors  are  to  be  sold,  or 
who  knowingly  permits  the  sale  of  liquor  therein,  which  causes 
the  intoxication  of  any  person,  is  severally  or  jointly  liable 
with  the  person  selling  the  same  for  actual  damages  resulting 
from  such  sale,  as  well  as  for  exemplary  damages.'  And  any 
person  who  rents  or  leases  premises  to  another  to  be  used  and 
occupied  for  the  purpose  of  selling  intoxicating  liquors  may  be 
held  responsible  for  all  damages  assessed  against  any  person 
occupying  the  same.  This  does  not  apply,  hoAvever,  to  an  owner 
who  rents  or  leases  his  premises  without  knowledge  that  the 
same  are  to  be  used  for  the  sale  of  liquor.*  Nor  is  an  owner 
of  premises  who  rents  the  same  with  a  distinct  understanding 
that  liquor  is  not  to  be  sold,  liable  when  sold  without  his 


5  R  S.,  sec.  4356. 
-R.  S.,  sec.  4358. 

8  R  S.,  sec.  4357.     Contractors  may 
Bue  person  furnishing  liquor  to  their 


employees.    Duroy  v.  Blinn,  11  O.  S. 
331. 
<  Zink  V.  Grant,  25  O.  S.  85a 


€98 


INTOXICATING    LIQUORS. 


[§  729. 


knowledge.'  An  action  may  be  maintained  against  a  person 
who  owns  merely  a  life  estate,  but  leases  the  same  for  the 
sale  of  intoxicating  liquors,  and  the  damages  may  be  enforced 
against  such  life  estate.^  But  the  estate  in  remainder  cannot 
be  held.^  Where  the  place  is  described  as  a  room,  and  the 
proof  shows  that  liquor  was  sold  in  a  cellar  or  grocery,  it  is 
not  a  variance.* 

In  an  action  by  a  wife  for  an  injury  to  her  means  of  sup- 
port, it  is  not  necessary  to  show  that  she  has  been  at  any 
time,  in  whole  or  in  part,  without  means  of  support.'  The 
liability  is  not  confined  to  injury  resulting  from  drunkenness 
merely,  but  extends  to  cases  where  it  results  in  insanity, 
sickness  or  inability  caused  by  such  intoxication."  In  Ohio 
and  other  states  the  doctrine  is  clearly  laid  down  that  under 
the  liquor  laws  no  recovery  can  be  had  for  damages  resulting 
in  death  as  a  necessar}'"  result  from  the  sale  of  intoxicating  liq- 
uors.^ Under  similar  statutes  other  courts  hold  that  damages 
to  the  support  of  any  one  resulting  from  death  caused  inci- 
dentally or  otherwise  by  intoxication  may  be  recovered.^ 
The  liquor-dealer  may  be  liable  to  exemplary  damages  in  an 
action  by  the  widow  of  the  person  losing  his  life."  It  has  also 
been  held  that  a  right  of  action  for  injury  to  means  of  sup- 
port may  be  maintained  by  a  child  born  after  the  father's 


1 0'Rourke  v.  DeGiaw,  21  N.  Y.  S. 
1118  (1893). 

2  Mullen  V.  Peck,  49  O.  S.  447. 

3  Mullen  V.  Peck,  supra. 

4  O'Keefe  v.  State,  24  O.  S.  175. 

fi  Mulford  V.  Clewell,  21  O.  S.  191 
(1871).  See  Schneider  v.  Hosier,  21 
O.  S.  98 ;  Sibila  v.  Bahney,  34  O.  S. 
399.  Sales  made  after  the  cona- 
mencenieut  of  the  action  may  be 
shown.     Bean  v.  Green,  33  O.  S.  444. 

6  Mulford  V.  Clewell,  supra;  Stone 
V.  Dickman,  5  Allen,  29;  Shearman 
&  Redfield  on  Neg.,  sees.  27  and  46, 

7  Kirchner  v.  Meyers,  35  O.  S.  85 ; 
Davis  V.  Justice,  31  O.  S.  359.  Re- 
covery can  be  had  only  for  the  time 
the  intoxication  lasts.  Krach  v.  Heil- 
man,  53  Ind.  518.  No  liability  where 
person  intoxicated  is  assaulted  and 


injured.  Shugart  v.  Egan,  83  HL 
56.  Or  is  run  over  by  a  train  of  cars 
while  intoxicated.  Collier  v.  Early, 
54  Ind.  559.  See  Backes  v.  Dant,  55 
Ind.  181 ;  Brookmire  v.  Monaghan, 
15  Hun,  16;  Hayes  v.  Phelan,  4  Hun, 
733;  King  v.  Henkie,  80  Ala.  505; 
Hackett  v.  Smelsley,  77  111.  109.  See 
Tiffany's  Death  by  Wrongful  Act, 
sec.  78. 

8  Eddy  V.  Courtright,  91  Mich.  264 
Quinlen  v.  Welch,  23  N.  Y.  S.  963 
Raflerty  v.  Buckman,  46  la.  195 
Jackson  v.  Brookins,  5  Hun,  530 
Quain  v.  Russell,  8  Hun,  319 ;  Barrett 
V.  Dolan,  130  Mass.  866. 

9  Kennedy  v.  Sullivan,  136  111.  94. 
See  Davis  v.  McKnight,  146  Pa.  St 
610. 


§  730.]  INTOXICATING    LIQUORS.  699 

death  which  resulted  from  intoxication.'  ]S"or  is  it  essential 
that  a  defendant  shall  have  been  the  sole  cause  of  such  intox- 
ication. Any  one  who  contributes  to  cause  the  same  by  his 
illegal  sales  is  liable.-  Where  separate  actions  are  brouirht 
by  a  wife  for  injury  to  her  means  of  support  against  different 
persons,  the  fact  that  one  of  thera  has  been  compromised  and 
settled  is  no  defense  to  the  other.''  And  the  fact  that  the 
husband  drank  to  excess  will  not  defeat  a  recovery,  although 
it  may  be  taken  into  consideration  upon  the  question  of  dam- 
ages.* The  statute  lias  also  been  held  to  include  the  mother 
of  an  adult  son,  with  whom  she  lived  and  who  voluntarily 
supported  her.^  It  is  not  necessary  that  the  illegal  sales  be 
proved  beyond  a  reasonable  doubt.® 
Sec.  730.  Petition  by  wife  for  injury  to  her  support. — 

Plaintiff  states  that  she  is  the  wife  of  A.  B.  and  entirely  de- 
pendent upon  him  for  support.  That  her  said  husband,  when 
sober  and  free  from  the  influence  of  intoxicating  liquor,  is  a 
diligent  and  careful  worker,  being  engaged  in  the  business  of 
[state  inhat],  and  is  capable  of  earning  at  said  business  the  sum 

of  $ per  month.     That  her  said  husband  is  addicted  to 

the  habit  of  intoxication  [state  extent  of],  and  when  he  once 
becomes  intoxicated  continues  in  that  condition  for  a  consid- 
erable length  of  time,  which  fact  was  well  known  to  the  de- 
fendant. 

That  the  defendant  C.  D.  is  and  has  been  for  [state  approxi- 

mately]  engaged  in  the  sale  of  intoxicating  liquors  at  No. , 

M.  street,  in  the  city  of  ,  and  is   well  acquainted  with 

plaintiff's  husband  and  his  said  habits  in  respect  to  intoxica- 
tion. 

That  on  or  about ,  IS — ,  said  defendant  sold  to  plaint- 
iff's husband  intoxicating  liquors,  by  reason  whereof  he  be- 
came intoxicated,  thereby  reviving  his  said  habit,  and  that 
he  has  continually  since  said  date  been  in  the  habit  of  becom- 
ing intoxicated  upon  liquors  sold  him  by  the  said  defendant. 

That  plaintiff  did  on  the day  of ,  18 — .  give  notice 

to  said  defendant  not  to  sell  her  said  husband  intoxicating 
liquors,  but  that  said  defendant  wholly  disregarded  said  no- 
tice, and  continued  at  numerous  times  to  sell  her  husband  intox- 
icating liquors  from  the  date  of  said  notice  until  the  commence- 
ment of  this  action,  wholly  disregarding  said  notice,  and  with 
full  knowledge  of  the  habits  of  her  husband.- 

1  Quinlen  v.  Welch,  23  N.  Y.  S.  963.  3  Miller  v.  Patterson,  31  O.  S.  419. 

2  Boyd  V.  Watt,  27  O.  S.  259 ;  Rautz  <  Uldrick  v.  Gilmore,  35  Neb.  288. 
V.  Barnes,  40  O.  S.  43;  Bryant  v.  5  Eddy  v.  Courtright,  91  Mich.  264, 
Tidgewell,  133  Mass.  86;  Edwards  v.  6  Lyon  v.  Fleahmann,  34  O.  S.  151. 
Woodberry,  156  Mass.  21. 


INTOXICATING   LIQUOES.  [§  731. 

That  by  reason  of  the  sale  of  such  intoxicating  liquor  by 

defendant  to  her  husband  the  latter  has  been  since ,  18 — , 

to  the  present  time,  almost  continuously  intoxicated,  wholly 
neglecting  his  business,  squandering  his  money,  and  failing  to 
provide  plaintiff  with  the  necessary  food,  etc.  [state  any  spe- 
cial damages  resulting], 

[Prayer  for  damages.'] 

Note.—  See  ante,  sec.  729.  As  to  notice,  see  R  S.,  sees.  4359,  4360.  The 
notice  need  not  be  recorded  by  township  clerks.  The  substance  only  is 
sufficient    Bankhardt  v.  Freeborn,  42  O.  S.  52. 

Sec.  731.   Petition   against  owner  of  premises  where 

liquor  sold. — 

[Continue  from  *  i/n  preceding  form,  sec.  730.]  The  defend- 
ant J.  H.  is  the  owner  in  fee  of  the  premises  located  and  sit- 
uated at  No. ,  M.  street,  in  the  city  of ,  and  of  the 

building  situate  thereon,  in  which  the  said  C.  D.  is  engaged 
in  the  sale  of  intoxicating  liquors.  That  defendant  J.  H. 
leased  said  building  to  said  C.  D.  with  full  knowledge  that 
the  said  C.  D.  expected  to  engage  in  the  business  of  the  sale 
of  intoxicating  liquors  therein,  and  that  said  defendant  J.  H. 
has  had  knowledge  that  said  C.  D.  has  so  been  using  and 
occupying  said  building  for  the  sale  of  intoxicating  liquors 
therein.     [Set  out  special  damages^  and  pra/yer  for  judgment.] 


CHAPTER  52. 
JUDGMENTS. 

Sec.  733.  Action  on  a  judgment  |  Sec.  735.  What     defenses     may    be 

made  to  action  on  judg- 
ment. 


733.  Petition  on  judgment. 
73-1.  Petition  on  foreign  judg- 
ment. 


Sec.  732.  Action  on  a  jndi^nient. —  That  an  action  will  lie 
under  the  code  upon  a  judgment  at  law  for  money,  whether 
domestic  or  foreign,  is  well  settled.^  The  same  is  true  of  de- 
crees in  chancery  for  the  payment  of  money.*  A  domestic 
lien  becomes  a  lien  as  soon  as  pronounced,  while  a  foreign 
judgment  is  meveXy  pynma  facie  evidence  of  indebtedness.' 
The  fact  that  a  judgment  rendered  by  a  justice  may  be  en- 
forced by  execution  will  not  bar  an  action  thereon;*  the 
action  may  be  brought  even  though  an  execution  which  has 
been  issued  has  not  been  returned.'  After  judgment  the  law 
implies  a  promise  on  the  part  of  the  judgment  debtor  to  pay 
it,  and  in  an  action  thereon  plaintitf  is  entitled  to  such  reme- 
dies as  are  authorized  in  actions  upon  contracts,  whether  it  be 
a  foreign  or  domestic  judgment.^  That  an  action  of  debt  will 
lie  upon  judgments  at  law  for  money,  whether  domestic  or 
foreign,  seems  to  be  well  supported,'  though  the  supreme  court 
of  Ohio  has  refused  to  consider  a  domestic  judgment  a  spe- 
cialty or  contract  within  the  meaning  of  the  statutes  of  limita- 
tion,^ but  holds  a  foreign  judgment  to  be  a  contract.'    So  far 

1  Healy  v.  Roby,  6  O.  521 ;  Tyler  v.  » Linton  v.  Hurley.  114  Mass.  76. 

Winslow,  15  O.  S.   364;  Church  v.  «Gutta  Percha  Mfg.  Ca  v.  Mayor, 

(Dole,  1  Hill.  645 ;  Moore  v.  Ogden,  35  108  N.  Y.  276. 

O.   S.   433 ;   Goodin  v.  McArthur,  4  •  Moore  v.  Ogden,  35  O.  S.  483-4 ; 

W.  L.  B.  215.  Haly  v.   Roby,  6  O.   521 ;    Tyler   v. 

«Moore  V.  Adie,  18  O.  430;  Moore  Wiuslow,  15  O.   S.   364;    Church  v. 

V.  Stark.  1  0.  S.  374.                           .  Cole,  1  Hill,  645;  Clark  v.  Goodwin, 

3  Pelton  V.  Platner,  13  0.  209 ;  Dun-  14  Mass.  236. 

bar  V.  Hollowell.  34  111.  168.  8 Tyler  v.  Winslow.  15  O.  S.  364. 

♦  Brooks  V.  Todd,  1   Handy,  169 ;  9  Stockwell  v.  Coleman,  10  O.  S.  3a 
Fox  V.  Burns.  2  W.  L.  M.  3S7 ;  Goodin 
V.  McArthur.  4  W.  L.  B.  215. 


702  JUDGMENTS.  [§  732. 

as  the  latter  class  of  judgments  are  concernetl,  it  has  been 
held  that  in  actions  thereon  the  substantial  allegation  of  an 
action  in  debt  may  be  made,  as  they  possess  no  higher  char- 
acter than  simple  contract  debts.^  And  it  is  generally  con- 
ceded that  the  petition  should  state  the  court,  the  term  when 
rendered,  the  parties  and  amount  of  the  judgment,  attaching 
a  copy  of  the  transcript  thereto,  the  same  being  an  evidence 
of  indebtedness,  though  not  for  the  purpose  of  supplying  aver- 
ments.- 

The  weight  of  authority  seems  to  hold  it  unnecessary  to 
aver  jurisdiction  in  case  of  a  foreign  judgment.^  This  must 
be  restricted  to  courts  of  general  jurisdiction,*  as  the  facts 
giving  a  court  of  inferior  jurisdiction  cognizance  over  the  sub- 
ject-matter involved  should  be  set  forth.^  As  intimated,  the 
doctrine  is  maintained  in  some  jurisdictions  that  the  petition 
on  a  foreign  judgment  should  show  jurisdiction  in  the  court 
rendering  the  same ;  ^  and  indeed  this  seems  the  better  rule, 
and  more  in  harmony  with  other  principles  that  statutes  of 
foreign  or  sister  states  should  be  pleaded  as  well  as  the  con- 
struction placed  upon  them.  And  it  does  not  seem  reasonable 
that  a  court  should  take  judicial  notice  of  the  jurisdiction  of 
a  court  rendering  a  foreign  judgment.'  The  judgment  may 
be  set  forth  according  to  its  legal  effect,^  and  it  will  be  suffi- 
cient to  state  that  the  debt  remains  unpaid  and  is  full  force, 
without  alleging  that  it  was  not  appealed  f  rom.^  In  an  action 
on  a  domestic  judgment  it  will  be  sufficient  to  allege  that  it 
was  duly  rendered  and  that  the  defendant  is  indebted  to  the 
plaintiff;  ^^  it  is  not  necessary  to  allege  jurisdiction  or  personal 
service."     It  is  provided  by  the  code,  which  is  considered  ap- 

1  Memphis  Med.  Coll.  v.  Newton.  1  5  Harmon  v.  Horse  &  Cattle  Co.,  9 
Handy,   163 :    Bank  v.   Eamsey,  26     Mont.  243. 

AtL  Rep.  837  (N.  J.,  1893) :  Black  on  6  Grant  v.  Bledsoe,  20  Tex.  456 ;  Mc- 

Judgments,  sec.  850.  Laughlin  v.  Nichols,  13  Abb.  Pr.  244. 

2  Dougherty  v.  Longmore,  2  C.  S.  '^  See  Boone's  Pldg,  sec.  160. 
C.  R  134;  Burns  v.  Simpson,  9  Kan.  8  Bank  v.  Veasey,  14  Ark.  671. 
658 ;  Anderson  v.  Flack,  88  Ala.  294 ;  9  Choquette  v.  Artet,  60  Cal.  594. 
Mount  V.  Scholes,  120  111.  394.  ic  Wehrman  v.  Reakirt,  2  C.  S.  C.  R. 

3  Boone's  Pldg.,  sec.   165;  Scanlan  29. 

V.  Murphy,  53  N.  W.  Rep.  799  (Minn.,       n  Burnes  v.  Simpson,  9  Kan.  658; 
1892).  Spaulding  v.  Baldwin,  31  Ind.  376. 

4  Butcher  v.    Bank,    2    Kan.    70; 
Dodge  V.  Coffin,  15  Kan.  277. 


§§  733-735.]  JUDGMENTS.  70a 

plicable  only  to  judgments  of  inferior  tribunals,  that  in  plead- 
ing a  judgment,  or  other  determination  of  a  court,  it  shall 
be  sufficient  to  state  that  such  judgment  was  duly  given 
or  made;  and  if  controverted,  the  party  pleading  must  estab- 
lish on  the  trial  facts  conferring  jurisdiction.^ 

Sec.  733.  Petition  on  judgment. — 

On  the day  of ,  18—,  at  the terra  of  the  court 

of  common  pleas  of county,  Ohio,  plaintiff  recovered  a 

judgment  against  the  said  defendant,  in  cause  No. .  entitled 

,  plaintiff,  and .  defendant,  for  the  sum  of 

$ ,  etc. 

That  said  judgment  is  wholly  unpaid  and  is  still  a  valid  and 
subsisting  judgment  against  said  defendant,  and  there  is  due 
thereon  from  said  defendant  the  sum  of  | ,  etc. 

\^Prayer.'\ 

[Attach  copy  of  transcript.'] 

Sec.  734.  Petition  on  foreign  judgment. — 

On  the day  of ,  18 — ,  at  the term  of ,  18—, 

of  the  court  of ,  in  the  county  of and  state  of  — — , 

to  wit,  on  the day  of ,  18 — ,  in  an  action  there  pend- 
ing wherein  plaintiff  herein  was  plaintiff  and  defendant  herein 
was  defendant,  plaintiff  recovered  a  judgment  aorainst  said 

defendant  in  the  sum  of  $ .     (A  copy  of  the  transcript  of 

the  said  judgment  is  filed  herewith  as  an  exhibit.) 

That  by  the  laws  of  said  state  of said court  of 

is  a  court  of  general  jurisdiction,  having  cognizance  over 

\_state  the  suhject-matter  of  judgment\  and  said  court,  at  the 
time  of  the  rendition  of  the  aforesaid  judgment  against  said 
defendant,  had  acquired  jurisdiction  over  him  by  personal 
service. 

That  said  judgment  is  wholly  unpaid  and  is  still  a  valid  and 
subsisting  judgment  against  said  defendant,  and  there  is  due 
thereon  from  said  defendant  the  sura  of  $ . 

[Prayer.'^j 

Sec.  735.  What  defenses  may  be  made  to  action  on  judg- 
ment.—  A  judicial  record  is  conclusive  only  as  to  those  alle- 
gations which  are  material  and  traversable.^  The  record  of  a 
foreign  judgment  may  be  contradicted  as  to  facts  necessary 
to  give  it  jurisdiction."  If  there  are  two  defendants  one  may 
set  up  want  of  jurisdiction  over  his  co-defendant.^  A  general 
denial  will  raise  the  issue  of  the  rendition  of  the  judgment, 

1  O.  Code,  st'c.  5090,  p.  l'J9.  <  Mackay  v.   Gordon,  34  N.   J.  L. 

2  Wixson  V.  Devine.  67  Cal.  341.  286. 
*  Penny  wit  v.  Foote,  27  O.  S.  600; 

Spin-  V.  Corll,  83  O.  S.  236. 


704  JUDGMENTS.  [§  735. 

the  jurisdiction  of  the  court  as  to  parties  and  subject-matter.^ 
It  is  a  good  defense  to  a  foreign  judgment  tiiat  it  was  ob- 
tained by  fraud,^  or  want  of  personal  service,^  or  in  fact  any 
defense  may  be  made  wliich  would  be  available  in  the  state 
where  the  judgment  was  rendered.*  An  answer  setting  up 
nul  tiel  record  raises  only  the  question  of  the  existence  of  the 
record.'^  An  answer  that  the  plaintiff  had  no  valid  judgment 
is  not  a  denial.' 

1  Railway   Co.  v.  McCarty,  8  Kan.  *  Rogers  v.  Gwinn,  21  la.  5a 
125.  *  Goodrich  v.  Jenkins,  6  0.  44 

2  Dobson  V.  Pearce,  12  N.  Y.  156 ;  ^  Gibbon  v.   Dougherty,   10  O.  S. 
Ward  V.  Quinlivin,  57  Mo.  425.  365. 

»  Marx  V.  Fore,  51  Mo.  69. 


CHAPTER  53. 


LANDLORD  AND  TENANT. 


Sea  738.  Action  for  injury  —  The  pe- 
tition. 

737.  Petition  by  tenant  agaipst 

landlord  for  injury  caused 
by  negligence  in  failing 
to  provide  fire-escapes. 

738.  Petition  by  tenant  against 

landlord  for  injury  from 
defective  sidewalk. 

739.  Action  for  use  and  occupa- 

tion—  The  petition. 

740.  Petition    for    recovery    of 

rent  under  a  lease. 

741.  Petition    to    recover    rent 

under  lease,  to  declare  the 
same  a  lien  on  the  lease- 
hold, and  for  a  sale 
thereof. 
743.  Petition  for  breach  of  cove- 
nant for  quiet  enjoy- 
ment 


Sec.  743.  Petition  for  assignee  of 
lessor  against  assignee  of 
lessee  on  covenant  to  in- 
sure, 
744  General  form  of  petition 
for  breach  of  covenants  — 
For  non-repair,  etc. 

745.  Petition     for    waste    com- 

mitted by  lessee. 

746.  Use  and  occupation  —  De- 

fenses. 

747.  Answer    of    surrender    of 

lease. 

748.  Answer  of  eviction  of  ten- 

ant by  third  person. 

749.  Answer  of  loss  of  building 
by  fire  —  Covenant  to  re- 
build. 

750.  Answer  of  loss  by  fire  with- 
out covenant  to  rebuild. 

751.  Answer  of  eviction  by  law 
as  a  defense  in  an  action 
for  rent 


Sec.  736.  Action  for  injury  —  The  petition.—  The  gen- 
eral rule  is  that  the  tenant  and  not  the  owner  of  the  premises 
is  liable  for  injuries  caused  by  a  failure  to  keep  the  same  in 
repair.  If  they  become  unsafe,  it  is  the  duty  of  the  tenant  to 
place  them  in  proper  condition  ;i  but  where  the  premises  are 
rented  with  a  nuisance  upon  them,  the  owner  is  liable.^  Own- 
ers of  property  not  occupying  the  same  cannot  complain  of  a 
nuisance  created  upon  it,  unless  they  suffer  special  damages, 
except  as  it  may  cause  the  diminution  of  the  rents.^     Where 


1  Burdick  v.  Cheadle,  26  O.  S.  397 
Shindlebeck  v.  Moon,  33  O.  S.  264 
Burns  v.  Luckett   3  W.  L.  B.  517 
Williams  v.  McCready,  2  W.  L.  B. 
45 


272 ;  Denver  v.  Solomon,  31  Pac  Rep. 
507  (Col,  1892). 

-  Denver  v.  Solomon,  supra. 

3  Dieringer  v.  Wehrman,  12  W.  L  B. 


706  LANDLORD    AND    TENANT.  [§  737. 

an  owner  of  a  building  in  which  is  operated  an  elevator  leases 
the  portion  of  the  same  containing  the  elevator,  the  lessee 
agreeing  to  keep  the  same  in  good  repair  and  use,  the  owner 
is  not  liable  for  an  accident  arising  from  failure  to  keep  the 
elevator  in  repair  where  it  is  operated  exclusively  by  th& 
lessee.^  But  where  a  landlord  has  retained  any  portion  of 
the  premises  under  his  control,  he  must  keep  the  same  in  re- 
pair and  free  from  danger,  and  is  not  excused  from  liability 
for  an  injury  to  a  tenant  on  the  ground  that  its  condition  was 
caused  by  an  independent  contractor.^  And  where  an  owner 
of  land  rents  a  store-room  in  which  he  places  fixtures  in  an 
unsafe  manner  and  rents  them  to  another,  he  is  liable  to  a 
third  person  who  is  injured  by  the  falling  of  such  fixtures.* 
A  tenant  who  sustains  an  injury  by  reason  of  the  failure  of 
the  landlord  to  comply  with  a  law  requiring  fire-escapes  to 
be  placed  upon  the  building  may  maintain  a  civil  action  in 
damages  therefor  against  the  owner.*  A  tenant  whose  term 
has  expired,  but  who  leaves  certain  property  in  a  building  by 
consent  of  the  lessor,  does  not  have  such  possession  as  will 
make  him  liable  for  an  injury  which  occurs  from  not  maintain- 
ing it  in  a  safe  condition.^  A  landlord  is  liable  for  an  injury 
to  a  person  to  whom  he  rents  his  premises  caused  by  an  ob- 
struction placed  on  a  sidewalk  in  such  a  manner  as  to  render 
the  same  unsafe.^  A  landlord  is  also  liable  for  an  injury  caused 
by  the  bad  condition  of  a  stairway.'' 

Sec.  737.  Petitiou  by  tenant  against  landlord  for  injury 
caused  by  negligence  in  failing  to  provide  fire-escapes.— 

\_Caption.'] 

At  all  times  hereinafter  mentioned  defendant  was  the  owner 
and  in  possession  and  control  of  a  building  located  at  num- 
ber    on  O.  street,  in  the  city  of  C,  and  state  of  Ohio, 

which  said  building  was  four  stories  high,  the  three  upper 

222;  Worcester  V.  Manufacturing  Co.,  3  Burdick  v.  Cheadle,  26  O.  S.  393, 

41  Me.  159 ;  Francis  v.  Schrockhoflf,  See  McNeal   v.   Emery,  8  W.  L.  B. 

53  N.  Y.  155;   Jutte  v.  Hughes,  67  265. 

N.  Y.  267.  *  Rose  v.  King,  49  O.  S.  213 ;  R  S., 

1  Sinton  v.  Butler,  40  O.  S.  158.  sees.  2573-84. 

2  Dorse  v.  Fisher,  19  W.  L.  B.  106.  spranke  v.  St.  Louis,  110  Mo.  516. 
See  Taylor  on  L.  &T.  175a;  Watkins  6  Brunker  v.  Gumming.    133  Ind. 
V.  Goodall,  138  Mass.  533;  Looney  v.  433;  32  N.  E  Rep.  732  (1892). 
McLean,  129  Mass.  33.     Cf.  Purcell  ^  Walton  v.  Kane,  23  N.  Y.  S.  1029.. 
V.  English,  86  Ind.  34. 


§  737.]  LANDLORD  AND  TENANT.  707 

Stories  of  which  were  used  as  a  tenement  house.  By  reason 
of  the  premises  it  became  and  was  at  all  times  the  duty  of 
said  defendant  to  provide  a  convenient  exit  or  ilre-escape 
from  the  different  upper  stories  of  said  building,  which  should 
be  easily  accessible  in  case  of  fire.  Yet  said  defendant  did 
not,  and  had  not  at  any  of  the  times  hereinafter  mentioned, 
performed  his  duty  in  any  respect  whatever,  and  did  not  pro- 
vide an}'  convenient  exit  or  fire-esca])e  from  any  of  said  upper 
stories  of  said  building  forming  a  tenement  house  as  afore- 
said; nor  did  he  provide  any  exits  or  fire-esca))es  from  any  of 
said  upper  stories  which  were  easily  accessible,  or  accessible 
at  all  to  this  plaintiff  in  case  of  fire. 

From   about  the  day  of  ,  IS — ,  until  after   the 

events  hereinafter  mentioned,  this  plaintiff  rented  from  de- 
fendant three  rooms  in  the  rear  of  said  building,  on  the  second 
story  of  said  building,  being  part  of  said  tenement  house,  and 
he  was  in  possession  and  occupancy  of  said  rooms  and  of  said 

part  of  said  tenement  house  on  the da}' of ,  18 — .    In 

the  night  of  the  day  last  aforesaid,  said  building  caught  fire 
in  the  lower  or  ground  story  of  said  building  in  a  dry  goods 
store,  and  soon  thereafter  communicated  with  a  pork  store  in 
said  defendant's  said  building,  which  was  particularly  inflam- 
mable, owing  to  the  character  of  business  there  carried  on.  Said 

pork  store  was  carried  on  by ,  of  which  defendant 

was  then,  and  for  a  long  time  previously  had  been,  president 
and  chief  stockholder.  Plaintiff  was  in  bed  when  the  alarm 
of  fire  was  given,  and  to  escape  from  said  building  he  was 
forced  to  jump  from  one  of  said  rear  windows  into  an  alloy 
which  ran  along  the  rear  of  said  building,  and  in  so  doing 
suffered  the  injuries  hereafter  mentioned.  The  fire  in  said 
lower  store  rendered  the  passage  leading  to  said  stairs  and 
front  of  the  building  impassable,  and  the  said  stairs  and  the 
front  windows  of  said  building  inaccessible  to  those  in  the 
rear  of  said  building.  Had  there  been  fire-escapes  at  any  of 
said  rear  windows,  as  under  the  statute  in  such  cases  made 
and  provided,  and  owing  to  the  construction  and  dangers  of 
said  building,  there  should  have  been,  or  had  defendant  pro- 
vided said  tenement  house  with  convenient  exits,  easily  acces- 
sible in  case  of  fire,  plaintiff  would  not  have  been  compelled 
to  escape  in  the  way  he  did,  nor  have  suffered  the  injuries 
hereinafter  mentioned.  In  jumping  from  said  window  plaint- 
iff struck  on  his  right  side,  breaking  his  right  arm  at  the  wrist- 
joint  into  a  number  of  fragments  [state  nature  of  injury  and 
special  daraages'].  While  seeking  to  escape  plaintiff  inhaled 
so  much  hot,  damp  smoke  as  to  seriously  injure  his  lungs, 
causing  a  large  abscess  therein,  etc.  Said  injuries  to  the 
ankle,Tungs  and  spine  are  permanent  in  their  nature,  and  will 
enfeeble  and  sicken  plaintiff  as  long  as  he  lives.  Plaintiff  ex- 
ercised all  due  and  proper  cai'e  in  about  said  premises,  and  he. 


7t»8  LANDLORD   AND    TENANT.  [§  738. 

received  said  injuries  wholly  by  the  carelessness,  negligence 
and  breach  of  duty  of  defendant  aforesaid  [and  not  through 
any  carelessness  or  negligence  of  his  own].  Plaintiff  has  there- 
fore, by  reason  of  the  premises  and  by  force  of  the  statute  in 
such  case  made  and  provided,  been  damaged  by  defendant  in 

the  sum  of  $ ,  for  which  sum  he  asks  judgment. 

M.,  K  &  W.,  Attorneys. 

Note.— From  Rose  v.  King,  49  O.  S.  213.  R.  S.,  sec.  2573,  makes  it  the 
duty  of  the  owner  of  a  tenement  house  to  provide  Hre-escapes.  Nor  is  this 
duty  confined  to  buildings  within  municipalities.  49  O.  S.  213.  A  tenant 
injured  by  reason  of  failure  of  the  landlord  to  provide  fire-escapes  may 
maintain  a  civil  action  in  damages.     Id. 

Sec.  738.  Petition  by  tenant  a&:ainst  landlord  for  injury 
from  defective  sidewalk. — 

[Caption,  etc.] 

Defendant  is  the  owner  of  the  following  described  premises, 
situate  in , ,  to  wit:  [Desonjdion.'] 

Plaintiff  did  on  the day  of ,  18 — ,  rent  said  prem- 
ises from  the  defendant  and  is  now  his  tenant.  That  said 
tenancy  is  by  the  month,  renewable  monthly,  and  as  a  part 
of  said  contract  said  defendant  agreed  to  keep  the  said  prem- 
ises, including  the  walk  hereinafter  mentioned,  in  good  condi- 
tion and  repair. 

Plaintiff  says  the  plank  walk  on  said  premises  was  rotten 
tmd  defective,  and  that  it  was  necessary  for  her,  in  the  proper 

use  of  said  premises,  to  use  said  walk  daily.     That  on  the 

day  of  ,  18 — ,  before  entering  upon  a  new  month  on  said 

premises,  she  notified  the  defendants  of  the  bad  and  danger- 
ous condition  of  said  walk,  and  again  on  the day  of , 

18 — .  That  at  said  time  she  notified  them  that  she  would 
leave  said  premises  unless  said  walk  was  repaired.  That  there- 
upon said  defendants  promised  at  each  time  to  fix  said  walk, 
and,  relying  on  said  promises  and  upon  the  contract  made  by 
said  defendant  as  to  repairs,  plaintiff  renewed  her  letting,  and 
by  reason  thereof  was  induced  to  remain.  But  that  the  de- 
fendant, disregarding  said  promises  and  neglecting  his  duty, 

failed  to  repair  the  said  walk  until  after  the day  of , 

18 — ,  on  which  day  plaintiff  had  occasion  to  use  said  walk  in 
her  daily  duties.  And  in  so  using  the  same  in  a  careful  man- 
ner, her  foot  slipped  into  a  hole  in  said  walk  and  her  ankle  was 

broken.     Plaintifl  says  that  No. , Ave.,  is  one  of  a 

row  of  houses  belonging  to  the  defendants,  and  that  the  walk 
complained  of  is  a  walk  in  the  rear  of  said  row,  and  is  a  com- 
mon walk  for  the  common  use  and  benefit  of  all  the  occu- 
])ants  of  said  row,  tenants  of  the  defendants,  being  a  com- 
mon highway  for  all  said  tenants  as  well  as  for  the  plaintiff, 
and  not  under  the  control  of  the  plaintiff.  That  said  walk 
made  by  the  defendants  was  by  virtue  of  the  contract  afore- 


§  739. J  LANDLORD    AND    TENANT.  709 

said   under  their  care  and  control  on  the  day  of  , 


18 — ,  on  which  plaintiff  was  injured.  Plaintiff  says  that  she 
is  a  lace-cleaner  by  trade,  tiiat  she  has  dependent  upon  her 
own  exertions  a  large  family,  and  that  hy  reason  of  said  ac- 
cident she  has  been  prevented  from  following  her  trade  and 
has  suffered  severe  bodily  ]iain  and  has  been  to  a  large  ex- 
pense by  reason  of  said  accident,  and  that  she  has  been  dam- 
aged in  the  sum  of  S .  Wherefore  plaintiff  prays  judg- 
ment against  the  defendants  in  said  sum  of  $ by  reason 

of  the  facts  above  set  forth. 

Note, —  Adapted  from  Emery  v.  Dee,  error  to  the  superior  court  of  Cincin- 
nati, Oiiio,  No.  1543  ;  superior  court  attirmed  by  supreme  court,  March  8, 189'2, 
in  which  it  was  Iield  by  the  superior  court  (18  W.  L.  B.  349)  that  in  the 
absence  of  a  contract  the  landlord  is  not  bound  to  keev)  the  walk  in  repair. 
The  form,  however,  is  changed  to  conform  to  the  decision.  See  Watkins 
V.  Goodall,  138  Mass.  533.  If,  however,  the  jireniises  were  a  nuisance  at  the 
time  of  letting,  recovery  could  be  had,     McNeal  v.  Emery,  8  W.  L.  B.  265. 

Sec.  739.  Action  for  use  and  occupation  —  The  petition. 

Several  tenants  in  common  who  unite  in  renting  property 
may  join  in  one  action  for  the  recovery  of  rent.'  It  is  not 
necessary  to  make  a  demand  for  rent  when  the  lease  provides 
that  mere  non-payment  will  determine  the  same.^  It  is  held 
that  the  action  will  lie  only  where  a  tenancy  is  established;^ 
and  will  not  lie  after  ejectment.'*  In  New  York  it  is  held 
unnecessary  to  aver  or  show  how  the  relation  of  landlord  and 
tenant  arose  between  the  parties.*  It  will  not  lie  at  the  suit 
of  a  purchaser  of  mortgaged  premises  sold  under  a  decree 
against  a  tenant  in  possession  under  the  mor-tgagor ; ''  nor  can 
it  be  maintained  where  possession  is  held  adversely  under 
a  claim  of  title,  where  no  contract,  ex))ress  or  implied,  is 
shown;'  or  where  the  circumstances  of  the  case  rebut  a 
promise  to  pay  rent.**  A  grantee  of  a  reversion  cannot  main- 
tain the  action  in  his  own  name  against  a  lessee  upon  an  ex- 
press covenant  contained  in  the  lease  for  the  payment  of  rent.^ 
The  action  cannot  be  prosecuted  in  any  county  other  than 
that  where  the  land  lies.'"  A  lessor  may  maintain  an  action 
for  rent  against  his  lessee  on  an  express  covenant  to  pay  rent 
during  the  term  of  his  leasehold,  even  though  the  latter  has 

1  Gaboon  v.  Kinen,  42  O.  S.  190.  7  Cincinnati  v.  Wall,  1  O.  S.  222. 

2  Sweeney  V.  Garrett,  2  Disn.  GOl ;  SHeidelbach    v.  Slader.   1    Hand}% 
City  V.  Fitzgerald,  2  C.  S.  C.  R.  61.  457 ;  Mitchell  v.  Pendleton,  21  O.  S. 

3  Richey  v.  Hinde,  6  O.  371.  664 ;  Despard  v.  Wallbridge.  15  N.  Y. 

4  Butler  V.  Cowles,  4  O.  205.  374 ;  Moore  v.  Harvey.  50  Vt.  297. 

5  Waters  v.  Clark,  22  How.  Pr.  104.        »  Crawford  v.  Chapman,  17  O.  449. 
<>  Peters  v.  Elkins,  14  O.  344.  ^0  Genin  v.  Grier,  10  O.  210. 


710  LANDLORD    AND    TENANT.  [§§  740,  741. 

assigned  all  bis  interest  and  the  lessor  has  accepted  rent  from 
the  assignee  of  the  term.^  Where  a  tenant  holds  over  after 
the  expiration  of  his  term  the  landlord  may  treat  him  as  a 
trespasser  or  a  tenant  for  another  year  upon  the  terms  of  the 
prior  lease; 2  and  where  the  tenure  is  uncertain  the  amount 
recoverable  is  the  fair  rental  vaiue.^  The  plaintiff  need  not 
set  forth  an  implied  demise,  but  may  declare  for  use  and  occu- 
pation and  recover  on  the  special  facts  shown.*  AVhere  rent 
is  payable  in  monthly  instalments,  an  action  for  each  instal- 
ment may  be  maintained  as  it  becomes  due.'^ 

Sec.  740.  Petition  for  recovery  of  rent  under  a  lease. — 

Plaintiff  is  the  owner  in  fee-simple  of  the  following  de- 
scribed premises  situate  in  the  city  of ,  etc. :  \ Description.'] 

On  the day  of ,  IS — ,  plaintiff  leased  said  premises 

to  the  defendant  6.  D.,  for  the  term  of years,  beginning 

on  the day  of ,  18 — ,  and  ending  on  the day  of 

,  18 — ,  at  a  yearly  rental  of  $ ,  to  be  paid  on  the 

day  of ,  18 — . 

Defendant  took  possession  of  said  premises  in  accordance 

with  the  terms  of  said  lease  on  the day  of ,  18 — , 

and  has  continuously  occupied  the  same  since  said  date,  etc., 
but  has  not  paid  the  rent  for ,  18 —  [state  time\  amount- 
ing to  the  sum  of  8 . 

There  is  due  from  the  said  defendant  to  plaintiff  the  said 
sum  of  8 for  rent  aforesaid,  for  which  he  asks  judgment. 

[Attach  copy  of  lease  as  exhibit  under  sec,  5085',  ante.,  sec.  57.] 

Note.—  See  also  form  in  Calioon  v.  Kinen,  43  O.  S.  190.  If  a  person  i^ 
occupying  premises  in  such  a  manner  that  a  contract  to  pay  rent  cannot  be 
implied,  rent  cannot,  in  the  absence  of  an  express  contract,  be  recovered. 
Mitchell  V.  Pendleton,  21  O.  S.  664.  See  15  N.  Y.  181 ;  oO  Vt.  297.  If  there 
be  a  void  contract  to  purchase,  the  person  occupying  the  premises  will  be 
liable  for  rent.  Mattox  v.  Hightshue.  39  Ind.  95.  The  giving  of  a  note  by 
lessee  to  lessor  is  not  payment  of  rent.     Sutliflf  v.  Atvvood,  15  O.  S.  186. 

Sec.  741.  Petition  to  recover  rent  under  lease,  to  declare 
the  same  a  lien  on  the  leasehold,  and  for  a  sale  thereof.— 

On  the day  of ,  18 — ,  plaintiff  duly  executed  and 

delivered  to  said  defendant  S.  A.  F.  a  lease  for  a  term  of 

years,  from  the day  of ,  18—,  to  the day  of 

1  Taylor  v.  De  Bus,  31  O.  S.  468;  even  though  the  premises  have  been 

Sutliff   V.    Atwood,    15    O.    S.    186 ;  held  under  a  void  lease.     Wilson  v. 

Smith  V.  Harrison,  42  O.  S.  180 ;  Lodge  Trustees,  8  O.  174. 

V.  White,  30  O.  S.  569.     The  action  2  Wheeler  v.  Grouse,  1  O.  C.  C.  234. 

cannot  be  sustained  against  the  per-  ^  Gaboon  v.  Kinen.  42  O.  S.  190. 

son   to   whom  assigned.     Fulton   v.  *  Morris  v.  Niles,  12  Abb.  Pr.  103 : 

Stuart,  2  O.  216;  Jones  v.  Smith.  14  Pierce  v.  Pierce,  25  Barb.  248. 

O.  606.    The  action  may  be  sustained  5  Fox  v.  Althorp,  40  O.  S.  322. 


;§  742.]  LANDLORD  AND  TENANT.  711 

■ ,  IS — ,  for  the  following  described  real  estate  situate  in 

coant3%  Ohio,  to  wit':  S^Desanption  of  j^remises.'] 


Plaintiff  further  says  that  the  rent  reserved  in  said  lease 
and  which  said  defendant  S.  A.  F.  in  and  by  said  lease  agreed 

to  ])ay  to  said  plaintiff  was  and  is  $ per  annum,  payable 

•quarterly  on  the  first  days  of  June,  Septemljer,  December  and 

March  in  each  year  during  said  term,  being  the  sura  of 

dollars  each  quarter.  And  said  defendant,  in  addition  to  the 
payment  of  said  rent,  also  agreed  and  {promised  to  pay  all 
taxes  and  assessments  on  said  premises  during  said  term; 
that  the  said  defendant  entered  into  possession  of  said  above- 
described  real  estate  under  said  lease  at  the  date  thereof,  and 
has  ever  since  held  possession  thereof,  and  thereby  became 
indebted  to  and  liable  and  bound  to  pay  said  plaintiff  the  sev- 
eral instalments  of  rent  falling  due,  as  follows:  [Copy  instal- 
r/ients  dtie.'] 

Plaintiff  says  that  under  and  according  to  the  terms  of  said 
lease  said  rent  is  a  lien  on  said  leasehold  estate  and  all  the  in- 
terest of  said  defendants  therein.  A  copy  of  said  lease  is 
hereto  attached,  marked  "  Exhibit  A." 

And  plaintiff  further  says  that  in  and  by  said  lease  said 
■defendant  had  and  has  the  privilege  of  purchasing  the  fee  of 
said  premises  at  any  time  during  said  term  for  the  sum  of 
$ after  payment  of  all  rents  and  taxes  then  due. 

Plaintiff  further  saj^s  that  said  defendant  S,  A.  F.  failed 
and  neglected  to  pay  said  ground  rent  or  any  part  thereof, 
and  each  and  all  of  said  instalments  of  ground  rent  are  due 
and  unpaid  with  interest  on  each  instalment  from  the  date  of 
its  maturity;  and  said  defendant  wholly  neglected  to  pay  the 
taxes  on  said  lots  as  required  by  said  lease. 

There  is  due  plaintiff  from  said  S.  A.  F.  for  rent  of  said 
real  estate  the  sum  of dollars,  v/ith  interest  on  each  in- 
stalment thereof  from  the  date  of  its  maturity  as  above  stated. 
Plaintiff  says  that  J.  E.  F.,  the  husband  of  said  S.  A.  F., 
joined  with  her  in  the  execution  of  said  lease. 

Wherefore  said  plaintiff  asks  for  a  decree  against  said  S.  A.  F. 

for  § ,  with  interest  as  above  stated,  and  that  the  same 

be  decreed  to  be  a  lien  on  said  leasehold  estate  and  premises, 
and  that  the  court  wnll  decree  a  sale  of  said  leasehold  estate 
and  all  interest  of  the  defendant  therein  for  the  payment  of 
said  indebtedness,  and  he  asks  for  all  other  pro])er  relief. 

C.  &  C,  Attorneys  for  Plaintiff. 

Note.—  Adapted  from  Evans  v.  Fortney,  error  to  circuit  court  of  Hamil- 
ton county,  Ohio,  Supreme  Court,  unreported,  No.  1954. 

Sec.  742.  Petition  for  breach  of  covenant  for  quiet  en- 
joyment.— 

On  the day  of ,  18 — ,  plaintiff  duly  executed  and 

delivered  to  said  defendant  a  lease  for  a  term  of years, 

from  the day  of ,  18—,  to  the (hiv  of ^1^— , 


712  LANDLORD    AND    TENANT.  [§  743. 

for  the  following  described  premises  situate  in  — — ,  etc.: 
[Deserijytioii.l  " 

That  said  lease  was  made  at  a  yearly  rental  of  $— - — ,  and 
contained  a  covenant  that  said  lessor,  for  himself,  his  heirs, 
executors  and  administrators,  would  permit  plaintiff,  upon 
promptly  paying  the  rent  as  therein  stipulated,  to  quietly 
enjoy  the  possession  of  said  premises  during  said  terra. 

That  the  plaintiff  thereupon  entered  into  possession  of  said 

premises  under  said  lease,  but  on  the day  of  ,  18 — , 

was  lawfully  evicted  therefrom  by  K.  O.,  who  possessed  the 
paramount  title  to  the  same. 

That  the  plaintiff  while  in  possession  of  said  premises  car- 
ried on  the  business  of ,  and  was  compelled  to  expend  the 

sum  of  $ in  removing  his  goods  to  another  store-room, 

and  lost  the  trade  of  numerous  customers  by  the  removal,  and 

by  reason  of  the  premises  was  damaged  in  the  sum  of  $ , 

for  which  he  asks  judgment. 

Note.— See  McAlpin  v.  Woodruff,  11  O.  S.  120;  Collins  v,  Lewis,  54  N. 
W.  Rep.  1056.  It  seems  unnecessary  to  attach  a  copy  of  lease  when  the 
action  is  for  breach  of  covenants. 

Sec.  743.  Petitiou  by  assignee  of  lessor  against  assignee 
of  lessee  on  covenant  to  insure. — 

That  on  the day  of ,  IS—,  by  a  certain  lease  then 

duly  made  between  S.  A.  P.  and  J.  C.  F.,  said  C.  D.  leased  to 
E.  F.  the  following  described  premises,  to  wit  [describe  ])reiii- 

ise8\  for  a  term  of  years,  beginning  on  the day  of 

,  18 — ,  and   ending  on  the  day  of  ,  18—,  at  a 

yearly  rental  of  $ . 

That  by  one  of  the  covenants  in  said  lease  the  said  lessee 

was  to  keep  said  premises  fully  insured  in  the  sum  of  % , 

for  the  benefit  of  the  lessor,  and  that  if  at  any  time  said  lessee 
should  fail  to  keep  the  same  so  insured,  the  said  lessor, 
S.  A.  P.,  might  cause  an  insurance  to  be  made  on  said  prem- 
ises at  the  expense  of  said  lessee  and  in  the  name  and  for 
the  benefit  of  said  lessor. 

That  on  the dav  of ,  18—,  C.  D.  sold  and  assigned 

to  the  plaintiff  all  his  "^interest  in  said  lease,  and  on  or  about 
said  date  all  the  interest  of  E.  F.  in  the  premises  and  lease 
was  sold  under  an  order  of  court  to  satisfy  a  judgment  against 
said  E.  F.,  and  the  defendants  became  the  purchasers  at  said 
sale  of  the  interest  of  said  lessee  in  said  ])remises. 

That  defendants  thereupon  took  possession  of  said  premises 
under  said  sale,  while  a  policy  of  insurance  thereon  for  the 
sum  of  8 .  procured  by  E.  F.  in  pursuance  of  said  cove- 
nant, was  still  in  full  force"  and  effect.     That  on  the day 

of  ,   18—,  said   policy  of  insurance  expired.     That  the 

plaintiff  thereupon  notified  defendants  to  insure  said  premises 
as  required  by  said  covenant,  which  they  neglected  and  re- 
fused to  do. 


§§  T44r-746.]  LANDLORD    AND   TENANT.  713 

That  on  the  clay  of  ,  18 — ,  the  plaintiff  insured 

the  same  according  to  the  tenor  and  provisions  of  said  cove- 
nant and  expended  therein  the  sum  of  $ ■. 

That  no  part  thereof  has  been  paid,  and  there  is  now  due 
from  the  defendant  to  the  plaintiff  thereon  the  sum  of  $ . 

Note. —  From  Masury  v,  Southworth,  9  O.  S.  341.  The  assignee  of  a  lease 
may  bring  suit  in  his  own  name ;  a  covenant  to  insure  runs  with  the 
land.    Id. 

Sec.  744.  General  form  of  petition  for  breach  of  cove- 
nants for  non-repair,  etc. — 

On  the day  of ,  18 — ,  plaintiff  duly  executed  and 

delivered  to  said  defendant  C.  D.  a  lease,  and  thereby  leased 

to  said  defendant,  for  the  term  of years,  from  the 

day  of ,  18 — ,  to  the day  of ,  18 — ,  at  a  3'early 

rental  of  $ ,  the  following  described  premises  situate  in 

the  county  of ,  Ohio,  to  wit :  [DesGri2)tw?i.'] 

That  by  the  terms  of  said  lease  said  defendant  expressly 
covenanted  that  he  would  [cojji/  covenant  as  to  repairs  or  any 
other\ 

That  said  defendant  took  possession  of  said  premises  under 
and  by  virtue  of  said  lease,  and  continued  to  occupy  the  same 
during  said  term,  but  has  not  \state  covenant  hroken\. 

That  by  reason  of  the  failure  of  said  defendant  to  fully  and 
completely  comply  with  the  terms  of  said  lease  aforesaid,  said 
premises  have  become  greatly  depreciated  in  value  in  the  sum 
of  $ . 

\_Prayer.'] 

Note. —  As  to  liability  of  tenant  for  repairs,  see  Scott  v.  Haverstraw  Brick 
Co.,  135  N.  Y.  141 ;  Lydecker  v.  Brintuall,  33  N.  E.  Rep.  399  (Mass.,  1893). 

Sec.  745.  Petition  for  waste  committed  by  lessee. — 

[Averments  as  in  ante,  sec.  71t2,  to  ■'■\J 

That  the  defendant  lessee,  while  so  occupying  said  premises, 

on  the day  of ,  18 — ,  in  violation  of  the  terms  of  his 

said  lease,  and  not  being  authorized  by  this  plaintiff,  did  \set 
forth  waste  committed^ 

That  by  reason  of  said  wrongful  acts  of  said  defendant  in 
[state  waste  committed]  has  greatly  damaged  plaintiff's  prem- 
ises [state  any  special  damages]  in  the  sum  of  % ,  for  which 

sum  plaintiff  asks  judgment  against  said  defendant. 

Sec.  746.  Use  and  occnpation  —  Defenses. —  If  the  build- 
ing be  destroyed  by  the  elements  or  other  cause,  without  fault 
of  lessee,  so  as  to  become  unfit  for  occupancy,  he  will  not  be 
liable  to  pay  any  rent  to  the  lessor  or  owner  thereof  for  such 
injury,  unless  otherwise  provided.^     In  an  action  by  the  land- 

1  R.  S.,  sec.  4113;  Avery  v.  House,  2  O.  C.  C.  246. 


714  LANDLORD    AND    TENANT.  [§  747. 

lord  ngainst  the  tenant  to  recover  possession,  it  is  no  defense 
to  show  that  the  parties  were  both  in  pari  delicto  in  the  un- 
lawful use  of  the  premises  causing  the  forfeiture.^  A  tenant 
is  entitled  to  a  proportionate  reduction  of  rent  where  he  is 
evicted  from  a  portion  of  the  premises  by  a  stranger  under  a 
paramount  title ;  and  he  is  entitled  to  be  relieved  entirely  if 
evicted  by  his  landlord.^  Where  there  has  been  a  breach  of 
a  covenant  for  quiet  enjoyment,  and  an  action  is  brought  to 
recover  rent  subsequently  falling  due,  the  tenant  may  counter- 
claim and  recover  his  damages.^  The  tenant  may  also  make 
a  defense  that  the  landlord  has  neglected  to  comply  with  the 
terms  of  the  lease  so  that  the  premises  have  become  unten- 
able, by  reason  of  which  he  was  compelled  to  leave  the  same.* 
The  general  rule  is  that  in  actions  for  rent  the  tenant  will  not 
be  permitted  to  question  or  impeach  the  landlord's  title.  But 
there  are  exceptions.  The  tenant  may  show  that  the  land- 
lord's title  has  expired,  or  has  been  terminated  or  extinguished 
by  his  own  act  or  by  operation  of  law.^  After  the  termina- 
tion of  a  lease  the  lessee  may,  without  surrendering  the  same, 
assert  a  claim  to  a  superior  title.^  A  defendant  may  unite,  as 
defenses  to  an  action  for  rent,  want  of  legal  or  valid  consider- 
ation for  the  lease,  and  a  counter-claim  for  damages  for  a  vio- 
lation of  the  terms  of  the  lease,  if  it  be  found  that  it  is  supported 
by  a  proper  consideration,  without  being  compelled  to  elect 
upon  which  he  will  rely.^ 
Sec.  747.  Answer  of  surrender  of  lease. — 

Defendant  alleges  that  on  the day  of ,  18 — ,  before 

the  rent  sued  for  by  plaintiff  became  due  and  payable  from 
the  defendant  under  the  lease  set  forth  in  plaintiff's  petition, 

Justice  V.  Lowe.  26  O.  S.  372.  Robertson  v.  Biddell,  13  So.  Rep.  358 

2  Crown  Mfg.  Co.  t.  Gay,  13  W.  L.  (Fla.,  1893);  Lane  v.  Young,  21  N.  Y. 
B.  188  (Ham.  Co.  D.  C,  1885).  S.  838 ;  Jackson  v.  Rowland,  6  Wend. 

3  Collins  V.  Lewis,  54  N.  W.  Rep.  670 ;  Despard  v.  Walbridge,  15  N.  Y. 
1056  (Minn.,  1893);  Gobel  v.  Hough,  374;  Hilbourn  v.  Fogg,  99  Mass.  12. 
26  Minn.  252.  6  Dodge  v.  Phelau,  21  S.  W.  Rep. 

4  Minneapolis  v.  Williamson,  52  N.  309  (Tex.,  1893) ;  McKie  v.  Anderson, 
W.  Rep.  986  (Minn.,  1892) ;  Lawrence  78  Tex.  207. 

V.  Marble  Co.,  20  N.  Y.  S.  698 ;  Pierce  ^  Hooven  &  Allison  Co.  v.  National 

V.  Joldersma,  91  Mich.  462 ;  Young  v.  Cordage   Co.,  27  W.  L.  B.    18  (Cin. 

Collett,  63  Mich.  331.  Super.  Ct.),  and  cases  cited. 
s  Rooker  v.  Demerit,  1  O.  C.  C.  156; 


§§    748-750. J  LANDLORD   AND    TENANT.  715 

he  surrendered  said  premises  to  plaintiff,  who  accepted  the 
same. 

Sec.  748.  Answer  of  eviction  of  tenant  by  third  person.— 

[Caption.'] 

Tliat  on  the day  of ,  18—,  and  after  the  making  of 

the  lease  set  forth  in  said  petition,  and  before  any  part  of 
the  rent  demanded  in  said  petition   became  due,  one  E.  F. 

brought  suit  in  the  court  of of  county,  and 

state  of  Ohio,  against  this  defendant  and  said  plaintiff  to  re- 
cover ]iossession  of  said  premises,  to  which  suit  said  plaintiff 
appeared,  filed  an  answer  and  stood  trial,  and  such  proceed- 
ings were  had  that  on  the day  of ,  18 — ,  judgment 

was  recovered  by  said  E.  F.  against  this  defendant  and  said 
plaintiff  for  the  possession  of  said  premises,  and  thereupon 
this  defendant  yielded  the  possession  of  said  premises  to  said 
E.  F.,  and  on  an  execution  issued  on  said  judgment  said  ])laint- 

iff  was  duly  ousted  on  the  day  of  ,  18 — ,  by  the 

sheriff  of county,  which  judgment  is  still  in  force  and  un- 
reversed. 

Sec.  749.  Answer  of  loss  of  buihling  by  fire  —  Covenant 
to  rebuild. — 

[Caj)tion.'\ 

That  in  the  lease  executed  by  the  plaintiff  to  the  defendant 
for  the  premises  described  in  the  petition  the  plaintiff  cov- 
enanted that  if  the  building  so  leased  b}'  defendant  should, 
during  the  time  it  was  so  leased,  be  destroyed  by  tire,  he 
woukl  immediately  rebuild  it. 

That  before  any  |  art  of  the  rent  sued  for  became  due  said 
building  was,  without  any  fault  of  defendant,  destro^-ed  acci- 
'dentalh^  by  tire,  by  reason  whereof  defendant  has  not  been 
iible  to  occupy  any  \mvt  of  said  premises. 

That  the  plaintiff  has  wholly  failed  to  rebuild  said  building. 

[Prayer.] 

Note.— R  S.,  sec.  4112. 

Sec.  750.  Answer  of  loss  by  fire  without  covenant  to  re- 
build.— 

[Caption.] 

That  the  premises  leased  by  defendant  for  which  the  plaint- 
iff claims  rent  consisted  of  three  rooms  in  a  large  four-story 
building,  occupied  by  stores  below  and  offices  on  the  upper 
floors,  severally,  by  different  tenants. 

That  on  the  day  of  ,  IS — ,  and  before  the  rent 

claimed  or  any  part  thereof  was  due,  said  building,  without 
the  fault  of  defendant,  was  wholly  destroyed  by  tire,  by  rea- 
son whereof  defenthmi  has  since  been  unable  to  occupy  said 
premises. 


716  LANDLORD   AND   TENANT.  [§   751^ 

Sec.  751.  Answer  of  evictiou  by  law  as  a  defense  in  an 
action  for  rent. — 

[Caption.'] 

Defendant  alleges  that  after  he  went  into  possession  of  the 
premises  under  the  lease  set  forth  in  plaintiff's  petition,  and 
before  the  rent  thereon  became  due  and  payable,  the  said 
plaintiff  ejected  and  dispossessed  defendant  from  said  prem- 
ises, and  that  plaintiff  has  since  had  possession  thereof. 


CHAPTER  54. 


LIBEL  AND  SLANDER. 


Sec.  752.  Libel  and  slander — Defined. 

753.  What  is  actionable. 

754.  Libel  and  slander  —  The  pe- 

tition. 

755.  Petition    for   libel  —  Illus- 

trating use  of  innuendo. 

756.  Petition  for  libel  charging 

dishonesty  in  business. 

757.  Petition   charging    slander 

in  speaking  words  action- 
able per  se. 

758.  Petition  charging    slander 

by  uttering  words  indi- 
rectly charging  a  crime. 

759.  Petition  in  slander  charging 

perjury. 

760.  Petition  for  libeling  an  at- 

torney —  with  innuendo. 


Sec.  761.  Petition  in  slander  in  charg- 
ing unchastity  of  femala 

762.  Slander  of  title. 

763.  Petition  charging   slander 

of  title. 

764.  Libel  and  slander  —  The  an- 

swer. 

765.  Answer  to  charge  of  per- 

jury. 

766.  Answer    in    mitigation  of 

libel. 

767.  Answer  claiming  justifica- 

tion. 

768.  Answer  of  want  of  chastity. 

769.  Answer    that   defamatory 

matter  was  printed  as 
part  of  judicial  proceed- 
ings. 


Sec.  752.  Libel  aud  slander  —  Defined. —  It  is  a  settled 
rule  of  law  that  every  publication  of  language  which  tends  to 
injure  another  in  his  business,  trade  or  employment  is,  if 
without  justification,  libelous  or  slanderous,  as  the  case  may 
be,  and  actionable j^f?/"  se}  Where  one  falsel}"  and  maliciously 
orally  charges  another  with  anything  involving  moral  turpi- 
tude, which,  if  true,  will  subject  him  to  infamous  punishment 
or  will  tend  to  exclude  him  from  societ}^,  or  prejudice  him  in 
his  office,  profession,  trade  or  business,  the  party  accused  may 
seek  redress  by  suit  in  slander,  and  recover  without  proof  of 
actual  damages.  Where  the  words  are  false,  the  law  infers 
malice;  and  where  their  actual  tendency  is  to  injure,  the  law 
presumes  damages.^  It  is  not  necessary  that  the  words  used 
in  a  published  article  be  slanderous  to  maintain  an  action  for 
libel.'    To  speak  or  write  of  a  trader  that  he  is  insolvent,  or 

1  Watson  V.  Trask,  6  O.  533.  Evening  News,   39  Mich.  636.     See 

2  Watson  V.  Trask,  supra;  Hatt  v.     Odgers  on  L.  &  S.,  p.  20,  and  note. 
News  Assoc,  94  Mich.  114;  Tryon  v.        ^Prosser  v.  Callis,  117  Ind.  105. 


718 


LIBEL    AND    SLANDER. 


lS  '-^^ 


of  an  innkeeper  that  his  house  is  infected  with  a  contagious, 
disease,  or  to  impute  dishonesty  or  incapacity  to  one  in  his 
business,  is  actionable  without  any  averment  or  proof  of  spe- 
cial damages.^  "Where  the  language  does  not  import  defama- 
tion, the  special  damages  suffered  must  be  alleged.'^ 

Sec.  753.  What  is  actionable. —  The  general  rule  of  law  is 
ttiat  where  the  charge,  if  true,  would  subject  the  plaintiff  to 
an  indictment  for  a  crime  involving  moral  turpitude,  or  to  an 
infamous  punishment,  the  words  are  actionable  per  se  without 
proof  of  actual  damages.^    In  an  action  against  another  for 


1  Hodge,  S.  &  L.,  30 ;  Whittaker  v. 
Bradley,  16  E.  C.  L.  310 ;  Pollard  v. 
Lyon,  9 1  U.  S.  235 ;  Price  v.  Conway, 
134  Pa.  St.  340 ;  Manufacturing  Co. 
V.  Perkins,  78  Mich.  1 ;  Orr  v.  Scho- 
field,  56  Me.  483 ;  Moore  v.  Rolin.  15 
S.  E.  Rep.  520  (Va.,  1892) ;  Nevvbold 
V.  Bradstreet.  57  Md.  38. 

2  Moore  v.  Rolin,  supra;  Townshend 
on  S.  &  K,  sec.  146  et  seq. 

3  Alfele  V.  Wright,  17  O.  S.  238 ; 
Watson  V.  Trask,  6  O.  531 ;  Dial  v. 
Holier,  6  O.  S.  228.  Words  imput- 
ing the  crime  of  larceny.  Ball  v. 
White,  39  O.  S.  650;  Reinhardt  v. 
Faschnacht,  4  O.  C.  C.  321.  Tliief. 
Fedtman  v.  Hancock,  1  O.  C.  C.  238. 
See  Hollingsworth  v.  Shaw,  19  O.  S. 
432 ;  Hamm  v.  Wickline.  26  O.  S.  81 ; 
Cheadle  v.  Buell,  6  O.  67 ;  McKean 
V.  Folden,  2  W.  L.  M.  146.  False 
swearing  to  be  actionable  must  be 
such  as  would  be  perjury.  Wilson 
V.  Oliphant,  W.  153;  Waggoner  v. 
Richmond,  W.  173.  Charging  in  sub- 
stance that  the  person  would  com- 
mit the  crime  of  perjury  is  libel 
per  se.  Sanford  v.  Rowley,  93  Mich. 
119.  An  action  cannot  be  main- 
tained for  calling  one  a  deserter  with- 
out an  averment  of  special  damages. 
Hollingsworth  v.  Shaw,  19  O.  S.  430. 
If  the  words  spoken,  taken  in  con- 
nection with  matter  set  up  by  way 
of  inducement,  clearly  impute  the 
commission  of  a  crime,  they  are  ac- 


tionable even  though  under  the  cir- 
cumstances and  manner  of  speaking 
them  they  might  not  be  actionable 
per  se.  Karger  v.  Rich.  81  Wis.  177. 
But  if  language  used  be  calculated- 
to  induce  those  who  read  it  to  be- 
lieve a  person  of  whom  it  is  written 
guilty  of  crime,  it  is  sufficient  to 
support  the  action.  Democrat  Pub. 
Co.  V.  Jones.  18  S.  W.  Rep.  652  (Tex., 
1892);  Zeeliff  v.  Jennings,  61  Tex. 
458;  Stroebel  v.  Whitney,  31  Minn. 
384 ;  Lewis  v.  Hudson.  44  Ga.  568 ; 
Proctor  v.  Owen.  18  Ind.  21 ;  Pros- 
ser  V.  Callis,  117  Ind.  105;  Crocker  v. 
Hadley,  102  Ind.  416.  If  words  ia 
their  ordinary  acceptance  amount 
to  a  charge  of  fornication,  and  the 
speaker  so  intends,  and  those  who 
hear  so  understand,  they  are  action- 
able. Rausou  V.  IMcCurley,  31  N.  E. 
Rep.  119  (111.,  1892);  Barnes  v,  Ha- 
mon,  71  111.  609;  Schmisseur  v. 
Kreilich,  92  111.  347.  But  an  action 
cannot  be  maintained  for  words 
which  impute  a  crime  where  it  ap- 
pears from  all  the  circumstances 
that  they  had  relation  to  a  tranac- 
tion  not  criminal,  and  were  so  under- 
stood. Brown  v.  Meyers,  40  O.  S.  99 ; 
Carmichael  v.  Shiel,  21  Ind.  66;. 
Williams  v.  Mines,  18  Conn.  473. 
A  publication  that  a  member  of  an 
official  board  was  a  liar,  thief  and 
perjurer  is  libelous  per  se.  Orth  v. 
Featherly,    87   Mich.  315.     To  print 


§  754]  LIBEL    AND    SLAXDEK.  71^ 

falsely  charging  perjury,  it  is  not  necessary  by  colloquium  to 
aver  that  the  word  was  used  in  reference  to  testimony  in  a  ju- 
dicial proceeding  in  which  the  plaintiff  had  been  sworn  as  a 
witness.!  A  petition  which  sets  out  the  language  used,  and 
states  that  in  using  the  same  the  defendant  intended  to  charge 
plaintiff  with  a  crime,  contains  a  good  cause  of  action.- 
Charging  a  teacher  with  punishing  a  pupil  so  severely  that  it 
caused  death  is  actionable;*  and  so  with  a  charge  that  a 
county  official  published  a  false  statement  of  the  financial  con- 
dition of  the  county;  ^  or  charging  a  clergyman  with  drunken- 
ness;'^ or  a  man  with  being  afflicted  with  venereal  disease;  ^  or 
words  s])oken  of  a  female  which  tend  to  bring  her  into  con- 
tempt and  prevent  her  from  occupying  a  proper  position  in 
society;^  or  charging  another  with  maliciously  removing  a 
corner-stone  on  lands ;  ^  or  a  publication  by  a  railroad  com- 
pany that  certain  goods  shipped  by  a  consignor  remained  un- 
delivered because  the  consignee  was  unable  to  pay  the  freight ;  ^ 
or  a  newspaper  publication  making  charges  against  a  public 
official  which  tend  to  diminish  public  respect  and  confidence.'* 
Words  spoken,  however,  of  an  official  in  the  discharge  of  du- 
ties are  not  actionable.'^  Nor  is  it  actionable  per  se  to  publish 
of  another  that  he  is  a  political  traitor  and  liar.'^  It  is  libel- 
ous, and  therefore  actionable,  for  a  notary  public  to  falsely 
and  maliciously  protest  a  negotiable  instrument.'* 

Sec.  754.  Libel  and  slander  — The  petition.— The  codes 
of  some  states  have  simplified  the  method  of  pleading  in  ac- 
tions for  libel  and  slander  by  providing  that  it  shall  be  suffi- 

aud  publish  of  a  person  that  he  "is  as  charging  want  of  chastity,  Bar- 
said  to  have  been  in  the  work-house,  nett  v.  Ward,  36  O,  S.  107. 
and  to  have  a  criminal   record,"  is  8  Dial  v.  Holter,  6  O.  228. 
libelous  per    se.     Post  Pub.   Co.   v.  9 Campbell    v.  Bostick,    22  S.   W. 
Maloney,  50  O.  S.  71.  Rep.  828  (Tex.,  1893), 

1  Stickels  v.  Hall,   3  O.  C.  C.    398 ;  lO  Bishop  v.  Gazette  Co.,  4  W.  L.  B. 
Green  v.  Long,  2  Caiues,  91.  1082 ;  Spiering  v.  Andrae,  2  Clev.  Rep. 

2  Reinhardt  v.  Faschnacht,  4  O.  C.  26. 

0.  321.  11  Goodeuow  v.  Tapin,  1  O.  60. 

3  Doan  v.  Kelley,  121  Ind.  413.  J2  Settlage  v.  Kampf,  19  W,  L.  B. 
^Prosser  v.  Callis,  117  Ind.  105.           321. 

SHayner  v.  Co%vden,  27  O.  S.  292.  13  May  v.  Jones,  15  L.  R  A.  637;  88 

^Kaucher  V.  Blinn,  29  O.  S.  63.  Ga.    308    (1891).     See   Van   Epps    v.. 

TMalone   v.    Stewart,    15    O.   319;  Jones,  50  Ga.  238. 
Murray  v.  Murray,  1  C.  S.  C.  R  290 ; 


720  LIJ5KL    AND    SLANDER.  [§  754. 

cient  to  state,  generally,  that  the  defamatory  matter  was  pub- 
lished or  spoken  of  the  plaintiff.  If  the  allegation  be  denied, 
the  plaintiff  must  prove  the  facts  showing  that  the  defamatory 
matter  was  spoken  of  him.  It  is  not  necessary  to  set  out  any 
obscene  word,  the  substance  only  being  essential.^  Codes  of 
other  states  provide  in  so  many  words  that  it  is  not  necessary 
to  state  extrinsic  facts  to  show  the  application  of  the  defam- 
atory matter  to  the  plaintiff.^  These  provisions  have  caused 
confusion  upon  the  question  of  the  necessity  and  use  of  the 
innuendo  and  colloquium,  as  well  as  the  necessity  of  averring 
extrinsic  facts.  It  seems  to  be  considered  by  some  authorities 
that  the  code  dispenses  with  the  necessity  of  pleading  extrin- 
sic facts.  But  the  innuendo  must  be  used  where  the  publica- 
tion does  not  appear  on  its  face  to  be  of  a  defamatory  char- 
acter, and  only  becomes  so  by  reference  to  extrinsic  facts, 
in  which  case  the  existence  of  those  facts  must  be  alleged  to 
show  a  libelous  meaning.^  But  where  the  words  themselves 
tend  to  injure  the  reputation,  the  allegation  of  extrinsic  facts 
is  not  necessary.^  The  office  of  an  innuendo  is  to  direct 
attention  to  the  charge  made.  It  can  neither  enlarge  nor  re- 
strain the  natural  sense  and  import  of  words  used.  If  they  are 
not  in  themselves  libelous,  or  are  incapable  of  a  libelous  mean- 
ing without  the  aid  of  an  innuendo,  they  cannot  be  given  that 
capability  by  the  use  of  an  innuendo.^  But  when  the  language 
is  ambiguous,  or  appears  upon  its  face  to  be  harmless,  it  may 
be  explained  by  an  innuendo  and  rendered  actionable.®     It  is 

1  Ohio  R  a,  sec.  5093 ;  Nebraska  mond,  14  How.  Pr.  265 ;  Wallace  v. 
Code  (1891),  sec.  46G8;   Swearengen     Bennett,  1  Abb.  N.  C.  478. 

V.  Stanley,  23  la.  115 ;  Wesley  v.  Ben-  ■»  Moore  v.  Bennett,  48  N.  Y.  472. 

nett,  6  Duer,  688.   A  complaint  which  5  Tappan  v.  Wilson,  7  O.  (Pt.  1),  190 ; 

does  not  set  out  the  slanderous  words  Fleischman  v.  Bennett,  87  N.  Y.  231 ; 

is  insufficient.   Their  effect,  only,  will  Arrow  Steamship  Co.  v.  Bennett,  25 

not  answer.     Small  v.  Fisher,  2  Ind.  N.  Y.  S.  1029 ;  Bishop  v.  Gazette  Co., 

App.  426;  26  N.  E.  Rep.  714.  4  W.  L.  B.  1082. 

2  N.  Y.  R  S.,sec.  535 ;  Iowa  Code,  sec.  6  Bishop  v.  Gazette  Co.,  4  W.  L.  B. 
2681  (1889),  sec.  4208.  See  Kinyon  v.  1082 ;  Start  v.  Blogg,  10  Q.  B.  908 ; 
Palmer,  18  la.  377.  Pond  v.  Hartwell,  17  Pick.  269 ;  May- 

3  Harrison  v.  Manship,  120  Ind.  43;  nard  v.  Insurance  Co.,  47  CaL  207: 
McFadin  v.  David,  78  Ind.  445;  Wachter  v.  Quenzer,  29  N.  Y.  547; 
Wachter  v.  Quenzer,  29  N.  Y.  547 ;  Glatz  v.  Thein,  47  Minn.  278.  See 
Fry  V.  Bennett,  28  N.  Y.  324;  Dias  v.  Stevens  v.  Handley,  W.  123.  Words 
Short,  16  How.  322 ;  Blaisdell  v.  Ray-  not  actionable  in  themselves  should 


§  754.]  LIBEL    AND    SLANDER.  721 

not  the  office,  however,  of  the  innuendo  to  make  averments.* 
The  court  must  determine  whether  the  language  bears  the 
meaning  ascribed  to  it  by  the  innuendo,  and  whether  the  same 
is  trulv  assigned  is  for  the  iurv.^ 

The  provisions  of  the  code  heretofore  referred  to  were 
clearly  intended  to  dispense  with  the  necessity  of  the  collo- 
quium, as  it  provides  that  it  must  be  stated  that  the  words 
were  spoken  of  the  plaintiff.*  In  any  event,  if  it  be  denied 
that  the  words  were  spoken  of  and  concerning  the  plaintiflF, 
they  must  be  established.-*  It  is,  however,  dispensed  with 
only  when  it  is  unnecessary  to  show  that  the  defamatory 
words  applied  to  the  plaintiff.  The  averments  required  in 
common-law  pleading  to  show  the  meaning  of  the  words  must 
still  be  made.^ 

The  petition  must  also  show  that  the  libelous  matter  was 
published  of  some  person  in  some  way  designated  or  indicated, 
so  that  reference  may  be  made  to  it  by  the  pleader  as  appli- 
cable to  the  plaintiff,  and  the  actionable  quality  of  the  matter 
pubHshed  as  relating  to  the  plaintiff  must  appear.''  And 
where  the  name  of  the  person  libeled  is  not  given  it  will  be 
suflflcient  to  aver  that  the  defamatory  matter  w^as  published 
of  the  plaintiff.^  The  defamatory  matter  should  be  specified 
in  the  body  of  the  petition  with  precision,  and  there  should 

be  introduced  by  way  of  inducement,  v.  Craig,  80  Mo.  367 ;  Powell  v.  Craw- 
Wilson  V.  Runyou,  W.  653 ;   Brown  ford,  107  Mo.  595. 
V.  Kincaid,  W.  87.     Or  special  dam-  2Gohen  v.  Volksblatt  Co.,  31 W.  L. 
ages    should    be  alleged.     Foster  v.  B.  Ill ;  Townshendon  S.&  L,6ec.342. 
Boue,    38    111.   App.    613 ;     Benz    v.  3  o.  Code,  sec.  5093 ;  Nebraska  Code 
Weidenhoef  t,  83  Wis.  397 ;  Erwin  v.  (1891),  4668.     But  see  Powell  v.  Craw- 
Dezell,   64    Hun,    391 ;     Barnard    v.  ford,  107  Mo.  595. 
Press    Pub.    Co.,    17  N.   Y.   S.   573;  ">  Harris  v.  Zanone,  93  Cal.  59-65. 
Odgers,  S.  &  L.,  p.  112.    Whether  the  5  Bliss  on  Code  Pleading,  sec.  305; 
language  will  bear  the  meaning  as-  Fry  v,  Bennett,  5  Sand,  54 ;  Petsch 
cribed  it  by  the  innuendo  the  court  v.  Dispatch  P.  Co.,  40  Minn.  291 ;  Mc- 
must  determine,  and  the  jury  must  Laughlin  v.  Russell,  17  O.  479;  Pike 
decide  whether  such  a  meaning  was  v.  Van  Wermer,  5  How.  Pr.  175. 
intended.     English  v,  English,  11  W.  6  Carlson  v.  Tribune  Co,,  47  Minn. 
L.   B.    123;    Democrat    Pub.   Co.   v,  337;    50  N.  W.  Rep.  229;    Smith  v. 
Jones,  18  S.  W.  Rep,  652;  Patch  v.  Coe,  22  Minn,  276;  Petsch  v.  Printing 
Association,  38   Hun,  568;  Harris  v.  Co.,  40  Minn,   291;    41   N.  W.  Rep. 
Zanone,  93  Cal.  59-65.  1034 ;  Small  v.  Fisher,  2  Ind.  App. 
1  Bundy  v.  Hart,  46  Mo.  464 ;  Cristal  426. 

^  Powers  V,  Seaton,  3  W.  L,  M.  532. 
46 


722  LIBEL    AND    SLANDEK.  [§  754 

be  direct  allegations  pointing  out  in  wiiat  particular  the  lan- 
guage was  libelous.^  AVlien  words  are  published  in  a  foreign 
lano^uage  thev  should  be  set  forth  in  that  language,  accom- 
panied  by  a  translation  of  their  meaning  in  English,  and  an 
averment  that  they  were  understood  by  those  who  heard 
them.^ 

It  is  a  general  rule  that  malice  need  not  be  alleged  where 
words  are  actionable  i^er  se?  In  cases  of  libel  and  slander  a 
distinction  between  malice  in  law  and  in  fact  is  recognized. 
The  former  is  inferred  from  the  doing  of  a  wrongful  act  with- 
out justification.  The  latter  is  distinguished  from  malice  in 
law  in. that  it  is  proved  expressly,  while  the  former  is  inferred 
from  the  publication  of  the  false  language.  Even  though  it  be 
inferred  from  the  publication,  it  is  nevertheless  a  question  of 
fact  in  respect  to  which  evidence  may  be  admitted  to  show 
what  it  is,  or  the  proper  inference  to  be  drawn.*  Where  actual 
malice  is  shown,  punitive  damages  may  be  assessed.^ 

To  render  words  which  are  of  such  character,  or  which  have 
been  spoken  under  such  circumstances,  that  they  may  fall  within 
the  purview  of  "  privileged  communications,"  actionable,  actual 
malice  must  be  averred  and  proved.^     An  action  will  not  lie 

1  Brown  v.  Durham,  22  S.  W.  Rep.  394 ;    Simonsen   .v.   Herald    Co.,   61 

868  (Tex.,  1893) ;    Bradstreet  v.  Gill,  Wis.  626 ;  Bower  v.  Deideiker,  38  la. 

77  Tex.  117;    Lynde  v.  Johnson,  39  418.     See  Bechtell  v.  Shatler.  W.  107 ; 

Hun,  13 ;  Cassidy  v.  Daily  Eagle,  138  Lettmann  v.  Ritz,  3  Sand.  734 ;  Glatz 

N.   Y.    239.     The    particular    words  v.  Tliein,  47  Minn.  278. 

published  and  not  their  purport  or  3  Robinson  v.  Hatch,  55  How.  Pr.  55. 

substance  must  be  set  forth.  Church-  ^  gmith  v.  Rodecap,  31  N.  E.  Rep. 

ill  V.  Kimple,  3  O.  409;  Rock  v.  Mc-  479  (Ind..  1892);  Townshend,  S.  &  L. 

Clarron,  95  Ind.  412 :  Sparts  v.  Pound-  (4th  ed.)  68.   See  6  L.  R  A.  680.  note.  It 

stone,  87  Ind.  522;  Smail  v.' Fisher,  should  be  stated  that  they  were  pub- 

2  Ind.  App.  426.    The  words  must  be  lislied  maliciously.     Hovey  v.  Pencil 

proved  substantially  as  charged.  San-  Co.,  57  N.  Y.  119;  Kendall  v.  Stone, 

ford  V.  Geddes,  15  111.  228 ;  Welborn  5  N.  Y.  14 ;  Dial  v.  Holter,  6  O.  S.  228. 

V.  Odell,  29  111.  457 ;  Ranson  v.  Mc-  Evidence  of  slanderous  statements 

Curley,  31  N.  E.  Rep.   119.     And  it  other  than  those  set  forth  in  the  pe- 

must  state  that  they  were  spoken  tition  may  be  introduced  as  bearing 

concerning  the  plaintiff.     Joseph  v.  on  the  question  of  malice.     Enoss  v. 

Christie,  8  W.  L.  B.  190.     And  where  Enoss,  135  N.  Y.  609. 

the  words  have  a  provincial  meaning,  ^Orth  v.  Featherly,  87  ^lich.  315; 

that  meaning  must  be  averi-ed  as  a  Commercial  Gazette  Co.  v.  Grooms, 

substantive  fact     Seller  v.  Jenkins,  21  W.  L.  B.  292. 

97  Ind.  430.  6  Crist  v.  Bradstreet,  17  W.  L.  R 

2Wormouth  v.   Cramer,  3  Wen  1.  138;    Bishop,    Non-Cont.    Law,    sec. 


§  754.]  LIBEL    AND    SLANDER.  723 

for  libelous  statements  classed  as  privileged  communications, 
of  which  rule  there  are  many  illustrations;  for  example,  state- 
ments in  an  answer  honestly  made  under  advice  of  coun- 
sel, without  malice;'  or  by  a  witness  testifying  in  a  judicial 
proceeding;  -  or  by  an  attorney  for  words  spoken  in  the  course 
of  a  judicial  proceeding;'  or  in  a  communication  addressed  to 
a  court  pertaining  to  the  character  of  an  applicant  for  ad- 
mission to  the  bar;^  or  in  fact  any  statements  made  in  plead- 
ings or  court  proceedings,  though  maliciously  and  falsely 
made.* 

If  words  are  not  actionable  per  se,  special  damages  should 
be  averred ;  ^  or  they  may  be  shown  to  be  slanderous  by  an 
allegation  that  at  the  time  and  place  they  were  spoken  they 
had  an  actionable  meaning.''  It  has  been  held  that  a  petition 
which  alleges  that  "  all  of  said  words  were  false  and  defam- 
atory,  and  fhat  by  reason  of  speaking  said  false,  slanderous 
and  defamatory  words  the  plaintiff  has  been  greatly  damaged," 
is  sutficient  as  against  a  demurrer.^  In  charging  injury  to 
one  in  his  vocation  it  is  not  necessary  to  allege  that  the 
plaintiff  was  in  receijit  of  emolument,^  though  it  should  be 
averred  that  the  words  were  used  in  reference  to  his  profes- 
sion.^" When  an  action  is  brought  for  slanderous  words 
spoken  at  different  times,  each  set  of  words  constitutes  a  sep- 
arate cause  of  action  and  should  be  separately  stated  and 
numbered. ^^  Though  a  seller  of  a  newspaper  containing  a 
libelous  article  is  not  liable  unless  he  had  knou'ledge  of  the 

306 ;     Railway   Co.    v.   Richards,    73  &  Bartlett  v.  Christhilf,  30  W.  L.  B. 

Tex.   575;    Campbell  v.   Bostick,  23  193.     See  p.  734,  note  3. 

S.  W.  Rep.  838  (Tex.,  1893).  "  Basil  v.  Elmore,  65  Barb.  637. 

1  Lanning  v.  Christy,  30  O.  S.  115 ;  ^  Emmerson  v.  Marvel,  55  Ind.  365 ; 

Hill  V.  Miles,  9  N.  H.  13 ;  Kidder  v.  Work  v.  Stevens,  76  Ind.  181 ;  Logan 

Parkhurst,   3  Allen,   393 ;   Marsh   v.  v.  Logan,  77  Ind.  558. 

Ellsworth,  50  N.  Y.  311.  8  Born  v.  Rosehovv,  84  Wis.  630 ;  54 

-'  Hunckel  v.  Voneiflf,  20  W.  L.  B.  N.  W.  Rep.  1088  (1893). 

186  (Md.) ;  Townshend  on  L.  &  S.,  sec.  9  Hayner  v.  Cowden,  37  O.  S.  293. 

233 ;  Lies   v.   Gaster,   43  O.  S.   631 ;  10  Van  Epps  v.  Jones.  50  Ga.  238 ; 

Cooley   on   Torts,   311;    Lanning  v.  Barnes  v.  Trundy,  31  Me.  331 ;  Bloss 

Christy,  30  O.  S.  115.  v.  Tobey,   2  Pick.   320;    Starkie  on 

3  Maulsby  v.  Reifsnlder,  20  W.  L.  B.  Slander,  109,  106. 

189  (Md.).  iiSwinney   v.   Nave,   22  Ind.  178; 

i  Wilson  V.  Whitacre,  4  O.  C.   C.  Fleischraan  v.  Bennett,  87  N.  Y.  231. 

15;  Bigelow  on  Torts,  pp.  52,  84.  See  ante,  sec.  28,  n.  11. 


72-1  LIBEL   AND   SLANDER.  [§  755. 

article,  yet  it  is  not  necessary  to  allege  knowledge  on  his  part, 
as  that  is  matter  of  defense.^ 

It  is  not  essential  that  the  plaintiff  in  stating  his  cause  of 
action  plead  good  character,  and  the  prevailing  doctrine  is 
that  he  is  not  allowed  in  the  first  instance  to  give  evidence 
to  show  that  fact.  It  is  only  necessary  for  him  to  prove 
good  character  when  it  has  been  assailed  by  the  defendant.- 
While  the  defendant  is  permitted  to  show  the  general  bad 
character  of  the  plaintiff  he  is  not  allowed  to  prove  any  spe- 
cific act.3  An  allegation  in  the  petition  that  the  plaintiff's 
character  is  good  and  a  denial  thereof  in  the  answer  does  not 
raise  a  material  issue.* 

Sec.  755.  Petition  for  libel  —  Illustrating  use  of  innu- 
endo.— 

Plaintiff  avers  that  the  said  defendants,  and  each  and  both 
of  them,  well  knowing  the  good  name,  character,  and  reputa- 
tion of  the  said  plaintiff  at  said  village,  county  and  state  afore- 
said, for  the  purpose,  and  with  malicious  and  wicked  intent, 
to  injure  plaintiff  in  his  good  name,  character  and  reputation, 
and  to  bring  him  into  public  scandal,  infamy  and  disgrace 
with  and  among  his  neighbors  and  other  good  citizens  of  said 
county  and  state,  and  to  cause  it  to  be  believed  by  said  neigh- 
bors and  citizens  aforesaid  that  the  plaintiff  was  guilty  of  the 
crime  and  offense  of  falsely  and  fraudulently  procuring  and 
obtaining  the  names  and  signatures  of  the  said  defendants, 
and  each  and  both  of  them,  to  certain  valuable  written  orders 
and  contracts   by  false  and  fraudulent  pretenses,  did  on  or 

about  the  day  of  ,   18—,  at  ,  in  the  county 

of  ,  and  state"  of  Ohio,  aforesaid,  falsely,  wilfully,  ma- 
liciously and  wickedly  write,  compose  and  pubhsh,  and  did 
then  and  there  cause  to  be  written,  composed  and  published, 
of  and  concerning  this  plaintiff,  a  certain  false  and  malicious 
libel  in  a  certain  newspaper  called  "  The  Independent,"  printed 

and  published  at  said , county,  Ohio,  which  has  a 

large  and  general  circulation  therein,  and  which  said  false  and 
malicious  libel,  so  written,  composed  and   published  by  said 

1  Street  v.  Johnson,  80  Wis.  455 ;  dence.  3  Sutherland  on  Damages, 
S.  C,  14  L.  R.  A.  637.  655 ;  Shroyer  v.  Miller,  3  W.  Va.  158. 

2  Blakeslee  v.  Hughes,  50  O.  S.  490 ;  3  vick  v.  Whitfield.  2  O.  222 ;  De 
Newell  on  Def.  &  S.,  pp.  771-823.  Witt  v.  Greenfield,  5  O.  225;  Fitz- 
The  law  presumes  plaintiff's  charac-  gerald  v.  Stewart,  53  Pa.  St.  343. 

ter  to  be  good  (1  Hilliard  on  Torts,  *  Stafford      v.    Morning      Journal 

sec.    63),  though    some    courts    and  Ass'n,  23  N.  Y.  S.  1 008 ;  Chapman  v. 

writers  maintain  that  plaintiff  may  Pickersgill,  2  Wils.  145;  Townshond 

confirm    this    presumption    by   evi-  on  S.  &  L.  (4th  ed.)  313,  314. 


§  755.]  LIBEL    AND    SLANDER.  725 

defendants  and  each  and  both  of  them,  of  and  concerning  the 
said  plaintiff,  is  in  the  words  and  figures  following,  to  wit; 
\_Copy  puhlication  entire^  using  innuendo  if  necessary,  as  fol- 
lows:^^     Illustration  of  use  of  innuendo: 

WARNING  —  W^ARNING. 

We  (meaning  thereby  the  residents  and  citizens  of  IT.)  have 
in  our  village  (meaning  thereby  the  village  of  H.)  one  J.  B. 
(meaning  thereby  the  ])laintiff),  who  is  now  and  has  been  for 
some  time  past  traversing  our  county  (meaning  thereby  the 
county  of  D.),  etc.,  etc.  Some  time  ago  B.  (meaning  the  plaint- 
iff), etc.  Afterw^ards  (meaning  after  the  said  defendants  had 
signed  said  order)  this  man  B.  (meaning  thereby  plaintiff),  etc. 

The  said  plaintiff  further  avers  that  said  defendants  and 
each  and  both  of  them  caused  the  above  and  foregoing  false 
and  malicious  libel  of  and  concerning  plaintiff  to  be  published 
and  printed  in  the  newspaper  aforesaid,  at  the  place  and  time 
aforesaid,  with  the  intent  and  for  the  purpose  of  thereby 
wilfully  and  maliciously  injuring  plaintiff  in  his  good  name, 
character  and  reputation,  and  did  thereby  greatly  injure 
plaintiff  in  his  good  name,  character  and  reputation.  The 
plaintiff  further  says  that  said  defendants,  each  and  both  of 
them,  wrote,  composed  and  caused  said  libel  to  be  published 
and  printed  as  aforesaid,  of  and  concerning  said  plaintiff,  for 
the  purpose  and  with  the  malicious  and  wicked  intent  of 
thereby  causing  it  to  be  believed  and  suspected  among  the 
people  and  citizens  of  said  village,  county  and  state  aforesaid, 
generally,  that  the  said  plaintiff  had  falsely  and  fraudulently, 
and  by  false  pretenses  and  fraudulent  representations,  ob- 
tained and  procured  the  names  and  signatures  of  the  said 
defendants,  and  each  and  both  of  them,  to  certain  orders  and 
contracts,  evidences  of  indebtedness,  for  the  Personal  Memoirs 
of  U,  S.  Grant,  of  great  value,  viz.,  of  the  value  of  dol- 
lars each,  with  intent  to  defraud  the  said  defendants  and  each 
of  them.  Plaintiff  further  avers  that  by  reason  of  the  writ- 
ing, composing  and  publishing  of  said  false  and  malicious 
libel  by  said  defendants,  and  each  and  both  of  them,  of  and 
concerning  this  plaintiff,  he  has  sustained  damages  in  the  sum 
of dollars. 

Wherefore  plaintiff  prays  for  judgment  against  the   said 

defendants  for  the  said  sum  of dollars,  his  damages  so 

as  aforesaid  sustained.  T.  &  F.  and  H.  &  C, 

Attorneys  for  Plaintiff. 

Note. —  Changed  from  Blakeslee  v.  Hughes,  50  O.  S.  490.  In  this  case 
the  petition  contained  a  lengthy  averment  as  to  residence  of  plaintiff  and 
as  to  his  good  character.  Evidence  was  given  in  chief  of  plaintiff's  good 
character,  for  which  action  the  trial  court  was  reversed.  So  that  allega- 
tions of  good  character  should  not  be  made.     See  ante,  sec.  754. 

Damao's  are  nominal  when  there  is  no  injury  iu  fact.  Rollins  v.  Pen- 
nock,  5  W.   L.   IM.    154.     Pecuuiaiv  ability  to  pay  defendant  may  be  cou- 


726  LIBEL    AND    SLANDEK.  [§§  756,  Y57. 

siderorl.  Alpin  t.  Morton,  21  O.  S.  536.  Loss  of  business,  Van  Ingen  v. 
Newton,  1  D.  482.  While  courts  liave  permitted  evidence  of  defendant's 
wealth  on  the  question  of  actual  damages,  some  have  recognized  the  dan- 
ger, and  have  siiown  a  disposition  to  retract  if  not  altogether  reject  it 
Randall  v.  Evening  News  Ass'n,  56  N.  W.  Rep.  (Mich.,  1893);  Case  v.  Marks, 
20  Conn.  248;  Watson  v.  Watson,  53  Mich.  176;  18  N.  W.  Rep.  605. 

Malice:  The  malice  of  the  editor  of  a  paper  is  tlie  malice  of  the  corpora- 
tion publishing  the  same.  Allen  v.  News  Pub.  Co.,  81  Wi.s.  120;  50  N.  W. 
Rep.  1093. 

Limitation:  Action  for  slander  must  be  commenced  in  one  year.  R.  S.. 
sec.  4983.  This  provision  is  strictly  construed,  and  the  limitation  will  com- 
mence to  run  from  the  speaking  of  the  words,  not  from  the  time  plaintiff 
first  had  knowledge  of  them.     Pearl  v.  Koch,  32  W.  L.  B.  52  (1894). 

Sec.  756.  Petition  for  libel  charging  dishonesty  in  busi- 
ness.— 

Plaintiff  states  that  he  has  been  engaged  in  the  business  of 

[state  husiness]  in  the  city  of  • ,  county  of  ,  Ohio,  for 

years  )3ast. 

That  the  degree  of  success  or  prosperity  of  plaintiff  in  said 
business,  in  a  large  measure,  is  dependent  upon  his  reputation 
for  truth  and  honesty  among  the  citizens  of  said  C,  and  upon 
the  credit  given  and  confidence  reposed  in  him  by  the  general 
public  and  those  with  whom  he  deals,  and  particularly  his 
customers. 

That  the  defendant  is  now  and  was  on  the day  of , 

IS — ,  the  publisher  and  proprietor  of  a  certain  newspaper 

called ,  published  in  said  city  of ,  and  having  a  large 

circulation  therein. 

That  defendant  on  the day  of  ,  IS — ,  with  the  in- 
tent and  for  the  purpose  of  wilfully  and  maliciously  injuring 
plaintiff  in  his  good  name,  character  and  reputation  in  his  said 
business,  did  write  and  cause  to  be  published  of  and  concern- 
ing plaintiff  in  his  said  business  the  following  false  and  libel- 
ous matter,  to  wit:  [Cojjy  libelous  matter.'] 
I  That  by  reason  of  the  said  false  and  malicious  publication 
of  said  libel  of  and  concerning  plaintiff  in  his  said  business, 

he  has  been  damaged  in  the  sum  of  $ ,  for  which  sum  he 

asks  judgment  against  said  defendant. 

Note. —  See  Dial  v.  Holter,  6  O.  S.  228;  Van  Ingen  v.  Newton,  1  Disn. 
482;  Mitchell  v.  Bradstreet  Co.,  22  S.  W.  Rep.  358;  Brown  v.  Vannaman,  85 
Wis.  451 ;  55  N.  W.  Rep.  183.  The  words  must  be  clearly  shown  to  have 
been  spoken  of  plaintiff  in  his  business.     Carroll  v.  White,  33  Barb.  615. 

Sec.  757.  Petition  charging  slander  in  speaking  words 
actionable  per  se. — 

[Captio7i^  etc.'] 

Plaintiff  states  that  the  defendant,  maliciously  intending 

to  injure  and  slander  plaintiff  in  his  good  name,  on  the 

day  of ,  18 — ,  at ,  in  a  certain  conversation  which 

said  defendant  then  had  with  certain  persons,  citizens  of  the 
city  of ,  in  the  state  of  Ohio,  did  wickedly  and  maliciously 


§  758.]  LIBEL    AND    SLANDER.  727 

speak,  in  the  presence  and  hearing  of  said  persons  and  citizens 

of  the  cit}^  of  aforesaid,  certain  false  and  slanderous 

words  of  and  concerning  plaintiff,  which  are  as  follows,  to  wit : 
You  (meaning  plaintiff)  are  a  robber;  you  (meaning  plaintiff) 
are  a  damned  robber;  I  (meaning  said  defendant)  believe  you 
are  a  robber  and  a  thief ;  you  (meaning  plaintiff)  are  a  counter- 
feiter (meaning  that  the  said  plaintiff  had  been  guilty  of  coun- 
terfeiting money,  or  some  evidence  of  debt,  or  some  papers 
executed  for  a  valuable  consideration) ;  I  (the  said  defendant 
meaning)  believe  you  are  a  counterfeiter  [or  set  forth  in  lil'e 
manner  the  other  dandelions  words, e.  (/.,yo\i  (meaning  the  said 
plaintiff)  are  perjured]. 

That  by  reason  of  the  speaking,  publishing  and  uttering  of 
said  false,  scandalous  and  malicious  words  the  said  plaintiff 
has  been  greatly  prejudiced  in  his  good  name,  fame  and  repu- 
tation, and  also  greatly  injured  in  his  business  [set  forth  special 
damage,  if  any].     Plaintiff  therefore  says  that  he  is  injured 

and  has  sustained  damages  to  the  amount  of dollars,  for 

which  he  asks  judgment. 

Note. —  Words  charging  venereal  disease  are  actionable  per  se.  Kaii- 
cher  V.  Bliuu,  29  O.  S.  62. 

Sec.  758.  Petitiou  cliargiug  slander  by  uttering  words 
indirectly  charging  a  crime. — 

[Caption.'] 

Plaintiff  says  that  the  defendant  contriving  to  injure  him, 

and  to  bring  him  into  public  ridicule,  did,  on  the da}'-  of 

,  18 — ,  falsely  and  maliciously  speak  and  publish  of  and 

concerning  plaintiff  and  of  and  concerning  the  theft  of  certain 
goods  and  chattels,  to  wit  [specify  what],  of  one  E.  F.,  of 

the  value  of  $ ,  which  had  been  theretofore  felonioush'^ 

stolen,  taken  and  carried  awa^^  to  wit,  at ,  on  or  about 

the day  of ,  18 — ,  the  false  and  malicious  words  fol- 
lowing, to  wit :  He  (meaning  the  said  plaintiff)  had  a  hand  in 
the  affair  (meaning  the  said  theft  of  the  said  goods  and  chat- 
tels), and  thereby  then  and  there  meaning  that  tiie  said  jilaint- 
ifl  had  been  and  was  guilty  of  [feloniously  stealing,  taking 
and  carrying  away  of  the  said  goods  and  chattels],  insomuch 
that  many  of  the  persons,  neighbors  and  citizens,  to  whom 
the  innocence  and  integrity  of  the  said  plaintiff  in  the  prem- 
ises were  unknown,  have,  on  account  of  the  speaking  and  pub- 
lishing of  which  said  several  false,  malicious  and  defamatory 
words  by  said  defendant  as  aforesaid,  from  thence  hitherto 
sus))ected  and  believed,  and  still  do  suspect  and  believe,  the 
said  plaintiff  to  have  been  and  to  be  a  person  guilty  of  theft 
so  as  aforesaid  charged  upon  and  imputed  to  iiim  by  the  said 
defendant,  and  have,  by  reason  thereof,  wholly  refused,  and 
still  do  refuse,  to  have  any  business  transaction  or  conver- 
sation with  plaintiff,  as  they  were  before  used  and  accustomed 


728  LIBEL    AND    SLANDER.  [^§  759,  760. 

to  have,  and  also  \_siate  special  damages] ;  and  also,  by  means  of 
the  premises,  the  said  plaintiff  has  been  o^reatly  injured  and 

damaged  in  the  sum  of dollars,  for  which  amount  he  asks 

for  judgment. 

Note. —  Where  the  words,  if  true,  would  subject  the  person  to  an  indict- 
ment, they  are  actionable  per  se.  Alfele  v.  Wright,  17  O.  S.  238.  See 
Cheadle  v.  Buell,  6  O.  67.  Charging  a  man  with  sodomy  is  not  actionable 
without  special  damages.  Davis  v.  Brown,  27  O.  S.  326.  And  there  liiust 
be  a  special  allegation.     Melvin  v.  Weiant,  36  O.  S.  187. 

Sec.  759.  Petition  in  slander  charging  perjury. — 

That  at  the   term,   18 — ,  of  the   court   of   common 

pleas  in county,  Ohio,  in  a  certain  action  then  pending 

therein  between  A.  B.  as  plaintiff  and  C.  D.  as  defendant,  said 
court  having  jurisdiction  of  the  subject-matter  of  said  suit, 
upon  the  trial  thereof  the  plaintiff,  being  duly  sworn  in  said 
cause,  testified  as  a  witness  touching  certain  matters  material 
to  the  issue  therein. 

Thereafter  on  the day  of ,  18 — ,  defendant,  wick- 
edly intending  to  injure  plaintiff,  and  to  cause  it  to  be  believed 
that  plaintiff  had  been  guilty  of  perjury,  in  a  certain  conver- 
sation which  defendant  then  had  of  and  concerning  plaintiff, 
in  the  presence  and  hearing  of  different  persons,  did  mali- 
ciously and  falsely  speak  and  publish  of  and  concerning  plaint- 
iff, and  of  and  concerning  his  testimony  aforesaid,  the  follow- 
ing false  and  defamatory  words,  to  wit:  "He,"  meaning  the 
plaintiff,  "  has  forsworn  himself,"  thereby  meaning  that  the 
plaintiff  in  his  testimony  given  at  the  trial  of  said  action  had 
committed  the  crime  of  perjury,  by  reason  of  which  the  plaint- 
iff has  been  brought  into  public  scandal  and  disgrace,  and 
greatly  injured  in  his  good  name,  to  his  damage  in  the  sum 
of  $ ,  for  which  plaintiff  asks  judgment. 

Note. —  As  to  charging  perjurv,  see  Boyd  v.  Sell,  Tapp.  11 ;  Willis  v.  Patter- 
son, Tapp.  276;  Brown  v.  Kincaid,  W.  37;  Wilson  v.  Oliphant,  W.  153.  It  is 
not  slander  to  charge  perjury  as  to  a  matter  which  would  not  in  fact  be 
perjury.     Waggoner  v.  Richmond,  W.  173. 

Sec.  760.  Petition  for  libeling  an  attorney  —  with  innu- 
endo.— 

That  the  defendant  on  or  about  the dav  of ,  18 — , 

wickedly  and  maliciously  intending  to  injure  the  plaintiff  in 
his  good  name,  credit  and  fame,  and  to  injure  him  in  his  pro- 
fession and  business  as  an  attorne}^  and  counselor  of  this  court, 
and  to  bring  him  into  disrepute  and  contempt  among  all  his 
neighbors  and  other  good  and  worthy  citizens,  and  to  cause  it 
to  be  believed  and  suspected  by  his  said  neighbors  and  other 
citizens  that  the  plaintiff  had  been  and  was  guilty  of  malprac- 
tice in  the  practice  of  his  profession,  and  was  incompetent  to 
properly  discharge  the  im])ortant  duties  of  his  profession,  and 
especially  of  his  position  as  attorney  and  counsel  to  the  board 


§  7bl.J  LIBEL    AND    SLANDER.  729 

of  trustees  of  the  village  of  O.,  and  to  vex,  harass  and  oppress 
him,  the  defendant  did  on  the day  of  ,  18 — ,  afore- 
said, at  O., ,  falsely,  wickedly  and  maliciously  cora])ose 

and  publish,  and  cause  and  procure  to  be  published,  in  hand- 
bills, a  copy  of  which  is  as  follows:  [co2)y\  and  circulated  and 
cause  to  be  circulated  extensively  in  the  village  of  O.  and 
vicinity,  of  and  concerning  him,  the  said  plaintiff,  a  false, 
scandalous  and  defamatory  libel,  containing,  among  other 
things,  the  false,  scandalous,  malicious,  defamatory  and  libel- 
ous matter  following,  of  and  concerning  the  said  plaintiff, 
that  is  to  say:  "Make  Burr  Mattice  attorney  for  the  village 
so  that  every  person  that  gets  spanked  on  the  ice  will  be  able 
to  obtain  a  judgment  of  from  $ to  S against  the  vil- 
lage," meaning  thereby  to  charge  plaintiff  with  want  of  skill 
and  care,  as  the  attorney  for  the  village  of  O.  in  defending 
certain  suits  against  said  village,  and  meaning  to  charge 
thereby  and  did  charge  plaintiff  with  neglect  in  the  care  and 
management  of  suits  against  the  said  village,  antl  with  wrong- 
ful and  dishonest  conduct  in  his  professional  dealings  as  the 
attorney  of  said  village. 

That  by  reason  of  the  aforesaid  premises  the  plaintiff  has 
been  and  is  greatly  injured  in  his  reputation  aforesaid,  and 
has  been  greatly  vexed,  harassed  and  impoverished,  and  has 
lost  and  been  deprived  of  divers  and  great  gains  and  profits 
which  would  otherwise  have  accrued  to  him  in  his  profession 

and  business,  to  his  damage  in  the  sum  of  $ ,  for  which  he 

asks  judgment. 

Note.— From  Mattice  v.  Wilcox,  24  N.  Y.  S.  1060.  To  charge  that  an 
attorney  has  never  been  admitted  to  tlie  bar  and  is  an  impostor  is  actionable 
per  se.    Goldrick  v.  Levy,  G  W.  L.  B.  20.     See  Goodenow  v,  Tappau,  1  O.  60. 

Sec.  761,  Petition  for  slander  in  charging  nnchastity  of 

female. — 

That  the  defendant,  during  the  months  of and , 

18 — ,  and  on  other  days,  contriving  and  wickedly  and  mali- 
ciously intending  to  injure  plaintiff  in  her  good  name,  fame 
and  credit,  and  to  bring  her  into  public  scandal,  infamy  and 
disgrace  with  and  among  all  her  neighbors  and  other  citizens, 
and  to  cause  it  to  be  suspected  and  believed  by  those  neigh- 
bors and  citizens  that  the  plaintiff  had  been  and  was  guilty  of 
the  offenses  and  misconduct  hereinafter  mentioned,  to  have 
been  made  and  charged  npon  her  by  said  defendawt,  and  to 
vex,  harass  and  oppress  her,  the  said  defendant  did,  at  the 

time  aforesaid,  at ,  in  a  certain  conversation  Avhich  the 

defendant  then  and  there  had  in  the  presence  and  hearing  of 
various  citizens,  falsely  and  maliciously  speak  and  declare  of 
and  concerning  plaintiff,  in  respect  to  her  profession  and  busi- 
ness, the  false  and  scandalous,  malicious  and  defamatory  words 


730  LIBEL    AND    SLANDER.  [§§  7t2,  763. 

followino;',  that  is  to  say :  Miss  D.  is  a  common  street-runner, 
etc.     \_Continuing  xoitli  charges  made.'] 

That  by  reason  of  the  commission  of  said  several  grievances 
by  said  defendant  as  aforesaid  plaintiff  has  been  and  still  is 
greatly  injured  in  her  profession  and  business  as  a  teacher  in 
the  common  schools  of  the  [state  where\  and  brought  into 
public  scandal,  infam}'-  and  disgrace  with  and  amongst  all  her 
neighbors  and  other  citizens,  to  the  damage  of  the  plaintiff  in 
the  sum  of  % . 

Note. —  Words  charging  a  woman  with  unchastity  are  actionable  per  se. 
Alfele  V.  Wright  17  6.  S.  238.  See  Murray  v.  Murray,  1  C.  S.  C.  R  290. 
Charging  a  woman  with  receiving  gentlemen  callers  late  at  night  does  not 
impute  unchastitv.  Hemmens  v.  Nelson,  138  N.  Y.  517.  See  McMahon  v. 
Hallock,  48  Hun,  617 ;  Indianapolis  Journal  v.  Pugh,  33  N.  E.  Rep.  991.  Words 
charging  a  woman  with  sleeping  with  a  man  not  her  husband  are  actionable 
per  se,    Barnett  v.  Ward,  36  O.  S.  107. 

Sec.  762.  Slander  of  title. —  An  action  for  slander  of  title 
will  lie  against  one  who  falsely  and  maliciously  disparages  the 
title  to  property  of  another,  thereby  causing  special  damages. 
Words  so  spoken  are  not  actionable  of  themselves;  but  it  is 
necessary  to  sustain  the  action  that  special  damages  be  averred 
and  proved,  and  should  therefore  be  distiucth^  and  particu- 
larly set  forth  in  the  petition.^  There  are  three  essential  ele- 
ments to  an  action  for  slander  of  title,  namely:  false  words, 
maliciously  published,  resulting  in  a  pecuniary  loss  or  injury.^ 
Where  a  cloud  is  cast  upon  the  title  to  land,  the  petition  should 
contain  an  averment  of  malice  or  the  want  of  probable  cause;' 
and  where  the  damage  resulting  consists  in  defeating  a  person 
in  securing  a  loan  upon  the  property,  or  defeats  the  sale 
thereof,  the  name  of  the  person  who  refused  to  make  the  loan 
or  purchase  should  be  given.* 

Sec.  ?63.  Petition  charging  slander  of  title. — 

[Caption.] 

Plaintiff  was  on  the day  of ,  18 — ,  the  owner  of  and 

seized  in  fee-simple,  by  good  and  sufficient  title,  of  the  follow- 
ing described  premises  situate  in  the  city  of ,  county  of 

,  and  state  of  Ohio,  to  wit :  [Description?^ 

1  Linden  v.  Graham.  1  Duer,  670 ;  Stone,  2  Sandf.  269 ;  Like  v.  McKin- 
Swan  V,  Tappan,  5  Cush.  104;  Addi-  strey,  41  Barb.  186;  Newell  on  Def.  & 
son  on  Torts,  25 ;  Kendall  v.  Stone,    S.  202. 

5  N.  Y.  14;  Like  v.  McKinstrey,  41  3  Duncan  v.  Griswold,  92  Ky.  546; 
Barb.  186.  18  S.  W.  Eep.    354  (1892) ;    Stark  v. 

2  Linden  v.  Graham,  1   Duer,  670 ;    Chitwood,  5  Kan,  141. 

Hill  V.  Ward,  13  Ala,  310 ;  Kendall  v.        <  Linden  v.  Graham,  1  Duer,  6'/0. 


f^  764.]  LIBEL   AND    SLANDER.  731 

That  on  the day  of ,  18 — ,  plaintiff  caused  the  said 

])remises  to  be  put  upland  offered  at  public  sale,  and  the  de- 
fendant, contriving  and  falsely  and  fraudulently  intending  to 
injure  plaintiff,  and  to  cause  it  to  be  suspected  and  believed 
that  plaintiff  liad  no  title,  estate  or  interest  of,  in  and  to  said 
land,  with  its  appurtenances,  and  to  hinder  and  prevent  plaintiff 
from  selling  or  disposing  of  the  same,  and  to  otherwise  injure 
])laintiff  and  put  him  to  expense  and  trouble,  falsely  and  mali- 
ciously caused  and  procured  a  certain  person,  to  wit,  one  W.  M., 
to  attend  and  be  present  at  and  upon  said  sale,  and,  before 
the  said  estate  and  interest  had  been  sold  and  and  disposed  of, 
falsely  and  maliciously  caused  and  procured  the  said  AY.  M.  to 
assert  and  represent,  and  the  said  W.  M.  did  then  and  there  ac- 
cordingly, in  the  presence  and  hearing  of  divers  citizens  of  said 
county  then  and  there  present,  of  and  concerning  the  plaintiff 
[and  of  and  concerning  the  said  G.  II.,  so  being  said  auctioneer 
as  aforesaid],  and  of  and  concerning  the  said  land  and  appur- 
tenances and  the  plaintiff's  said  estate  and  interest  therein, 
falsely  and  maliciously  speak  and  publish  the  following  words 
in  the  presence  and  hearing  of  those  then  and  there  present, 
viz.:  {Copy  loords  loith  proper  innuendoes?^ 

That  by  reason  of  the  speaking  of  the  said  defamatory 
words  by  said  defendant  at  said  sale,  in  the  presence  of  the 
several  persons  there  present  for  the  purpose  of  bidding  u]ion 
said  premises,  and  especially  J.  K.,  who  was  then  and  there 
about  to  bid  for  and  would  otherwise  have  purchased  the 
same,  were  then  and  there  prevented  from  bidding  for  and 
becoming  the  purchasers  thereof,  and  from  thence  hitherto 
have  wholly  declined  to  purchase  the  same;  and  thereby  the 
said  plaintiff  has  not  only  lost  and  been  deprived  of  all  the 
emoluments  and  advantages  which  he  might  and  would  have 
derived  and  acquired  from  the  sale  thereof,  but  has  been 
forced  to  pay  and  expend  large  sums  of  money,  to  wit,  the 

sum  of dollars,  in  and  about  said  exposure  to  sale  and 

the  expenses  incidental  thereto. 

Wherefore  the  plaintiff  says  he  has  been  damaged  in  the  sura 
of  dollars,  for  which  he  prays  judgment. 

Sec.  764.  Libel  and  slander  —  The  answer.—  The  defend- 
ant may  allege  in  his  answer  the  truth  of  the  matter  charged 
as  defamatory;  and  in  all  cases  he  may  prove  every  mitigat- 
ing circumstance  to  reduce  the  amount  of  damages.^     AVhere 

1  O.  Code,  sec.  5094 ;  Wesley  v.  Ben-  that  slanderous   words  were  pnvi- 

nett,  6  Duer,  688;  Steiber  V.  Weusel,  leged    and    true  is    a    justification. 

•19  Mo.  513;  Carson  v.  Mills,  69  N.  C.  Etchison  v.   Pergerson,  88  Ga.  620. 

'122.    See,  also,  Van  Ingen  v.  New-  The  jury  may  in  such  cases  reduce 

/ton,  1  Disn.  458 ;  Shields  v.  Moore,  2  the  damages    to  a    nominal    sum. 

AV.  K  M.  437.     A  defense  alleging  Commercial  Gazette  Co.  v.  Healey, 


732  LIBEL   AND   SLANDER.  [§  764^ 

tho  truth  of  the  charge  is  relied  on  as  a  defense,  the  particu- 
lars must  be  alleged ;  ^  and  it  must  also  be  shown  that  it  was 
accompanied  with  the  intent  imputed.^  An  answer,  however, 
pleading  the  truth  in  justification,  which  relates  only  to  parts 
of  a  publication,  is  insufficient,  unless  pleaded  specifically  as  a 
partial  defense.  The  justification  should  be  as  broad  as  the 
charge,  and  should  relate  to  the  identical  charge  attempted 
to  be  justified.^  "Where  the  words  charge  a  crime,  a  defend- 
ant pleading  the  truth  thereof  need  not  prove  it  beyond  a 
reasonable  doubt,*  Where  the  charge  in  the  petition  is  sought 
to  be  justified,  it  is  incumbent  upon  the  defendant  to  specially 
])lead  all  the  facts  constituting  the  justification,^  and  he  must 
also  admit  the  speaking  of  the  words  charged.*  A  justifica- 
tion should  not  be  broader  than  the  charge,  and  it  need  go 
no  further  than  to  justify  so  much  of  the  defamatory  matter 
as  is  actionable."  It  is  held  by  some  courts  that  a  plea  of 
justification  in  slander,  if  not  fully  sustained  by  proof,  is  of  it- 
self an  aggravation  of  damages.^  But  in  Ohio  and  other 
states  the  doctrine  is  adopted  that  the  truth  of  the  words 
spoken,  pleaded  in  good  faith  under  an  honest  belief  in  their 
truth,  and  with  reasonable  ground  therefor,  will  not  entitle 
the  plaintiff  to  exemplary  damages  in  case  of  failure  to  sus- 
tain the  same.® 

Under  a  general  denial  matter  in  mitigation  only  and  not 
in  bar  may  be  given  in  evidence.^**    So  w^here  the  words  oon- 

21  W.  L.  B.  93 ;  Van  Derveer  v.  Sut-  ard  v.   Printiog,  etc.   Co.,  32  N.  E. 

phin,    5    O.    S.    293 ;      Halstead    v.  Rep.  929  (Ind.,  1893). 

Schempp,  6  W.  L.  B.  271.  8  Fero  v.  Roscoe,  4  N.  Y.  162;  Wil- 

1  Robinson  v.  Hatch,  55  How.  Pr.  son  v.  Nations,  5  Yerger,  211;  Jack- 
55.  See  Commercial  Gazette  Co.  v.  son  v.  Stetson,  15  Mass.  48 ;  Farley 
Healy,  21  W.  L.  B.  93.  v.  Rauch,  3  W.  &  S.  556.    If  made  in 

2  Gage  V.  Robinson,  12  O.  250.  bad  faith  the  jury  may  consider  it 

3  Sawyer  v.  Bennett,  20  N.  Y.  S.  Tobin  v,  Sykes,  24  N.  Y.  S.  943. 

45 ;  s.  C,  20  N.  Y.  S.  835 ;  Townshend,  9  Rayner  v.  Kinney,  14  O.  S.  283 ; 

S.  &  L.  (3d  ed.),  sec.  312,  and  cases  Seeley  v.  Blair,   W.   683;  Distin  v. 

cited;  Fero  v.  Roscoe,  4  N.  Y.  162.  Rose,  69  N.  Y.  122;  Klinck  v.  Colby, 

4  Bell  V.  McGinness,  40  O.  S.  204.  46  N.  Y.  427. 

5  Duval  V.  Davey,  32  O.  S.  604 ;  i"  Smith  v.  Rodecap,  5  Ind.  App.  78 ; 
Sunman  v.  Brewin,  52  Ind.  140;  31  N.  E.  Rep.  479  (1892);  Duval  v. 
Boaz  v.  Fate,  43  Ind.  60.  Davey,   32   O.    S.   604 ;    Swinney  v. 

<>  Davis  V.  Mathews,  2  O.  257.  Nave,  22  Ind.  178 ;  McCoy  v.  McCoy, 

7  Heilman  v.  Shanklin,  60  Ind.  242 ;  106  Ind.  492 ;  Wilson  v.  Noonan,  35 
Townshend,  S.  &  L.,  sec.  213 ;  Wolf-    Wis.  321. 


§  764.]  LIBEL   AND    SLANDP^K.  733 

sisted  in  calling  another  a  thief,  it  cannot  bo  shown  that  they 
related  to  a  transaction  which  was  not  of  itself  larceny,^  or 
where  the  slander  consists  in  imputing  the  want  of  chastity  of 
•a  female,  specific  acts  of  intercourse  cannot  be  given.^  But 
a  defendant  cliarged  with  having  spoken  slanderous  words 
against  the  wife  of  another  may  show  under  a  general  denial 
that  the  wife  and  an  unmarried  man  had  lived  together  alone 
in  a  house,"  or  he  may  give  in  evidence  any  facts  tending  to  show 
that  he  spoke  the  words  under  a  mistaken  construction  placed 
'Upon  the  conduct,  which  was  in  fact  no  justification,*  or  any 
particular  facts  calculated  to  have  induced  mistake  or  to  have 
misled  the  party  may  be  admitted.^  But  it  is  no  defense  that 
a  defendant  did  not  intend  to  use  the  words  in  a  libelous 
sense.^  A  defendant  in  an  action  for  libel  may  claim  the 
privilege  of  being  excused  from  answ^ering  interrogatories  if 
his  answers  would  criminate  himselfJ  In  an  action  of  libel 
upon  a  publication  charging  a  person  with  crime,  it  cannot 
'be  set  up  by  way  of  defense  that  the  matters  complained  of 
were  published  by  a  proprietor  of  a  newspaper  in  his  capacity 
■of  journalist,  concerning  the  conduct  of  a  public  officer,  upon 
information  and  with  an  honest  belief  in  their  truth.^  A  de- 
fendant who  admits  the  publication  of  what  is  set  forth  in  the 
petition  should,  by  way  of  defense  or  mitigation,  plead  the 
remainder  of  the  article,  if  it  modifies  what  is  set  forth  in  the 
petition,  in  order  to  give  it  a  meaning  not  libelous  or  less 
libelous  than  it  appears  to  have,  when  it  is  severed  from  its 
•context.'    That  an  article  was  published  charging  a  person 

1  Sherman  v.  Rogers,  24  N.  Y.  S.  if  the  accused  uttered  the  words  on 
-'590  (1893).  the  authority  of  another  whose  name 

2  Duval  V.  Davey,  33  O.  S.  604.  he  gave.     Sexton  v.  Todd,  W.  316 ; 

3  Reynolds    v.    Tucker,   6  O.   516;  Young  v.  Slemmons,  W.  604.     But  it 
Blue  V.  Hoke.  3  W.  L.  M.  100.  is  not  a  defense  tliat  a  communication 

4  Haywood  v.  Foster,  6  O.  88.  was  privileged  if  it  appears  that  the 
*  Van  Derveer  v.  Sutphin,  5  O.  S.     same  was  false  and  malicious.    How 

293.  V.  Bodman,  1  Handy,  528. 

«Van   Ingen  v,   Newton,   1   Disn.  '  Globe  Rolling  Mill  v.  King,  2  C.  a 

458,  482.     It  is  held  that  an  answer  C.  R  21. 

to  an  allegation  of  intent  or  innuendo  8  Wahle  v.  Cincinnati  Gazette  Ca, 

in  the  petition  should  deny  the  slan-  4  W.  L.  B.  61. 

derous  intent  imputed  to  him  in  the  ^Biethen  v.  Stewart,  41  Minn.  205; 

use  of  words  in  order  to  raise  a  ma-  Oleson  v.  Journal  Printing  Co.,   47 

terial  issue.     Wilkin  v.  Tharp,  ry5  Ta.  Minn.  300. 
009.     It  is  considered  a  good  defense 


734  LIBEL    AND    SLANDEK.  [§§  7G5-7G7. 

with  a  crime  upon  information  of  others  and  without  malice 
is  no  defense.*  It  is  the  well-settled  doctrine  that  judges, 
counsel,  parties  and  witnesses  are  absolutely  exempted  from 
liability  for  statements  for  which  they  would  be  liable  if  spoken 
elsewhere,  if  made  in  the  progress  of  a  cause,  and  are  perti- 
nent and  material  to  the  case.^ 

Sec.  765.  Answer  to  charge  of  perjury.— 

Defendant  says  that  the  plaintiff  herein  was  a  witness  in  a 

certain  cause  heard  in  the  court  of  common  pleas  of  

county,  Ohio,  being  styled  A.  B.,  plaintiff,  against  0.  D.,  de- 
fendant, numbered  on  the  dockets  of  said  court.  De- 
fendant was  duly  sworn  according  to  law  and  testified  in  said 
cause  to  the  following  matters  material  in  said  cause,  to  wit 
[set  testimony  out,  as:']  Said  defendant  falsely  and  maliciously 
testified  that  [state  false  testimony  and  follow  with  allegation 
of  trutli\. 

Plaintiff  therefore  alleges  that  the  words  contained  and  set 
forth  in  said  petition  are  true,  and  asks  to  be  dismissed  witb 
his  costs. 

Note.— R.  S.,  sec.  5094. 

Sec.  766.  Answer  in  mitigation  of  libel.— 

[CaptionP\ 

Defendant  says  that  said  supposed  libelous  article  was,  oit 
the  day  of  ,  IS—,  published  in  the  ,  a  news- 
paper published  in  the  city  of  ,  state  of  Illinois,  and  was 

afterwards  copied  and  published  by  the  defendant  as  a  matter 
of  juiblic  news,  the  defendant  believing  the  same  to  be  true, 
and  the  same  was  not  published  maliciously  nor  with  intent 
to  injure  the  plaintiff. 

Note.— While  this  is  not  a  defense  it  may  be  shown  in  mitigation  of 
damages.     See  R.  S.,  sea  5094. 

Sec.  767.  Answer  claiming  jnstification.— 

Defendant  admits  uttering  the  words  set  forth  in  the  peti- 
tion, but  avers  that  the  same  are  true;  [or  add:']  that  before 
the  supposed  defamatory  words  were  uttered,  to  wit,  on  or 

about  the day  of ,  18—,  the  plaintiff  did  feloniously 

steal  [name  property  stolen],  the  property  of  this  defendant,  of 
the  value  of  $ . 

Note.—  R.  S.,  sec.  5094. 

»  Heyler  v.  N.  Y.  News  Pub.  Co.,  24  Carroll.  43  N.  Y.  161 ;  Smith  v.  How- 

N.  Y.  S.  499  (1893).  ard,  28  la.  51 ;  Barnes  v.  McCrate,  32 

2  See  ante,  sec.  754,  p.  723;  Rice  v.  Me.  442;  Hoar  v.  Wood,  3  Met.  19:3. 
Coolidge.   121    Mass.  393;   White  v. 


§§  768,  769.]  LIBEL   AND    SLANDER.  735 

Sec.  768.  Answer  of  want  of  chastity, — 

\^Captio7i.'\ 

Defendant  admits  that  he  spoke  the  words  alleged  in  the 

petition,  but  says  that  on  the  day  of  ,  18 — ,   the 

plaintiff  committed  adultery  with  one  U.  F.,  who  was  not  her 
husband;  defendant  therefore  says  the  words  charged  in  the 
petition  are  true,  and  asks  to  be  dismissed. 

Note.—  R.  S.,  sec.  5094.  Specific  acts  to  be  shown  must  be  pleaded.  Duval 
V.  Davey,  33  O.  S.  604.  The  general  reputation  of  plaintiff  for  chastity  may 
be  shown.  Id. ;  Foulkard's  Starkie  on  Slander,  sees.  714,  539 ;  Turner  v.  Fox- 
all,  2  Cranch  C.  C.  324.  It  may  be  shown  under  the  general  issue  that  the 
plaintiff  aud  married  man  had  lived  together  alone  in  one  house.  Rey- 
nolds V.  Tucker,  6  O.  S.  517.  If  there  is  evidence  of  want  of  chastity,  it'is 
error  to  refuse  to  charge  that,  if  she  "  was  a  woman  of  disparaged  reputa- 
tion, then  that  nmst  be  taken  into  consideration,"  unless  some  equivalent 
instruction  is  given.     Nellis  v.  Cramer,  56  N.  W.  Rep.  911  (Wis.,  1893). 

Sec.  769.  Answer  that  defamatory  matter  was  printed 
as  part  of  judicial  proceedings. — 

Defendant  says  that  on  the  day  of ,  18 — ,  there 

was  pending  in  the  court  of  common  pleas  of  county, 

(^hio,  a  certain  action  entitled . 

That  during  the  progress  of  said  cause  one  E,  F.,  who  was 
the  attorney  in  said  cause  for  the  plaintiff  C.  D.,  made  an 
argument  which  the  defendant  published  in  his  paper  as  part 
of  the  judicial  proceedings  of  said  action,  and  that  said  pub- 
lication was  not  made  with  any  malicious  intent,  nor  did  de- 
fendant endeavor  thereby  to  injure  the  character  or  reputa- 
tion of  plaintiff. 

Note. —  Mitigating  circumstances  may  be  shown.  R  S.,  sec.  5094.  Tes- 
timony of  a  witness  in  court  is  generally  privileged.  Hutchinson  v.  Lewis, 
75  Ind.  55 ;  30  W.  L.  B.  186. 


CHAPTER  55. 


LIENS. 


Sec.  770.     Mechanic's  lien  —  Parties. 
771.     Mechanic's  lieu  — Petition 

to  enforce. 
773.     Petition  by  contractor   to 
foreclose  mechanic's  lien 
against  owner. 
772a.  Petition  by  subcontractor 
to  foreclose  lien  against 
owner. 
773.     Petition  to  foreclose   lien 
on  railroad. 


Sec.  774. 

775. 
776. 

777. 

778. 
779. 


Mechanic's  lien  —  The  an- 
swer. 

Forms  of  answers. 

Vendor's  lien. 

Petition  to  enforce  vendor's 
lien. 

Petition  by  judgment  cred- 
itor to  marshal  liens. 

Petition  to  marshal  liens 
where  prior  lienholder 
has  lien  on  other  prop- 
erty. 


Sec.  770.  Mechanic's  lien  —  Parties. —  The  statutory  lien 
of  a  mechanic  or  material-man  is  assignable,  and  the  assignee 
thereof  may  in  his  own  name  maintain  an  action  for  its  en- 
forcement.^ A  petition  to  foreclose  a  lien  may  be  sustained 
by  two  persons  who  have  performed  labor  or  furnished  ma- 
terial for  their  common  benefit  in  the  erection  of  a  house  upon 
the  land  of  another.^  It  is  not  necessary  in  all  cases  to  join 
the  contractor  as  a  party  plaintiff.'  Contractors  are  proper 
parties  to  an  action  by  material-men  to  enforce  their  liens, 
though  not  necessary  parties.*  They  are  not  necessary  parties 
to  an  action  where  the  lien  sought  to  be  enforced  is  for  ma- 
terials furnished  after  they  have  abandoned  their  contract.^  A 
subsequent  purchaser  or  incumbrancer  is  a  proper  party  to  an 
action  brought  to  enforce  a  specific  lien  for  material.®  Nor 
is  a  prior  lienholder  a  necessary  party  unless  the  plaintiff 
seeks  to  impeach  or  set  aside  the  lien  held  by  such  prior  holder 
or  claims  priority  over  it.' 


ITuttle  V.  Howel,  14  Minn.  145; 
Rogers  v.  Hotel  Co.,  4  Neb.  54.  And 
the  assignment  of  the  account  car- 
ries with  it  tlie  lien.  Ritter  v.  Ste- 
vens, 7  Cal.  388. 


3GofiFs  V.  Papin,  34  Mo.  177. 
*  Yancy  v.  Morton,  94  Cal.  558. 

5  Green  v  Clifford,  94  Cal.  49. 

6  Rice  V.  Ilall,  41  Wis.  453. 

''  Sullivan  v.  Decker,  1  E.  D.  Smith, 


2  Rockwood  v.  Walcott,  3  Allen,  458.     699. 


§  Y71.]  LIENS.  737 

Sec.  771.  Mechanic's  lien  —  Petition  to  enforce. —  In  an 

action  to  recover  under  the  lien  law  it  is  important  that  the 
petition  should  show  a  compliance  with  all  the  particulars 
specified  by  statute  as  essential  in  obtaining  a  lien  thereunder.^ 
It  being  a  creature  of  statute,  one  seeking  to  avail  himself  of 
it  must  strictly  comply  with  its  terms.^  It  should  be  averred 
that  the  times  for  delivery,  performance  and  payment  are 
within  the  several  periods  named  in  the  statute.'  The  petition 
should  also  contain  a  specific  allegation  that  the  materials 
were  furnished  for  the  particular  building  against  which  the 
lien  is  sought  to  be  enforced.*  And  where  the  work  was  per- 
formed and  material  furnished  under  contract  with  the  owner 
of  the  premises,  the  petition  must  aver  that  fact,  setting  forth 
the  terms  and  facts  sufficient  to  create  a  lien.^  If  the  con- 
tract provides  that  the  certificate  of  the  architect  shall  be 
conclusive  evidence  of  the  builder's  right  to  final  judgment, 
which  is  produced  and  not  impeached,  there  is  no  reason  to 
deny  foreclosure  of  the  lien.^  It  must  also  be  shown  that  the 
contract  was  made  with  some  one  having  an  estate  or  interest 
in  the  land,^  and  that  the  defendant  is  the  owner  of  the  prop- 
erty;^ and  a  description  of  the  premises,  with  a  statement 
that  the  materials  were  furnished  and  labor  performed  on  ac- 
count of  the  owner,  must  be  given.^  An  action  to  enforce  a 
mechanic's  lien  and  to  charge  the  estate  with  an  incumbrance 
is  in  the  nature  of  a  proceeding  in  rem  as  well  as  a  personal 
action.'"  The  holder  of  a  lien  may  therefore  bring  a  separate 
action  to  obtain  personal  judgment  upon  his  account,  in  which 
case  the  lien  is  continued  until  the  action  is  determined  and 

1  Chapman  v.  Raunefels,  3  W.  L.  M.  fordsville  v.  Brundige,  57  Ind.   262 ; 

142;  Railway  Co.  v.  Cronin,  38  O.  S.  Crawfordsville  v.  Lockhart,  58  Ind. 

122;     Railroad    Co.    v.    McKay,    30  477 ;  Hill  v.  Sloan,  59  Ind.  181 ;  Ogg 

Ark.  682 ;    Kechler  v.   Stumnie,  36  v.  Tate.  52  Ind.  159. 

N.    Y.    Super.    387 ;     Cronkright  v.  5  Chapman  v.  Bolten  Steel   Co.,  4 

Thompson,  1  E.  D.  Smith.  661 :  Fos-  O.  C  C.  242.     See  Rockel  &  White's 

ter  V.  Poillon,  2  E.  D.  Smith,  556.  Ohio  Lien  Laws,  p.  166. 

2HoflEinan  v.  Walton,  36  Mo.  613-  ^Snaith  v.  Smith,  25  N.  Y.  S.  513. 

615.  "^  Porter  v.  Tooke,  35  Mo.  107 ;  Clark 

»Cook  V.  Rofiuot.  21  111.  437.  v.  Raymond,  27  Midi.  4o6. 

4  Crawford  v.  Crocket.  55  Ind.  220;  8  Hicks  v.  Murray,  43  Cal.  515. 

Crawfordsville  v.  Barr.  45  Ind.  258;  9  Shaw  v.  Allen,  24  Wis.  563. 

Hill  V.  Braden,  54  Ind.  72 ;    Craw-  i"  Shaw  v.  Allen,  24  Wis.  56a 
47 


738  LIENS.  [§  772. 

judgment  satisfied;^  and  a  personal  judgment  maybe  ren- 
dered against  the  defendant  even  though  the  plaintiff  fails  to 
establish  his  lien.* 

The  petition  by  a  subcontractor ^  must  show  that  the  labor 
and  material  were  furnished ;  that  the  claim  was  filed  as  re- 
quired by  statute;*  that  it  is  not  disputed,  or,  if  disputed,  that 
it  was  settled  by  arbitration,  and  that  subsequent  to  so  filing 
his  claim  a  payment  fell  due  from  the  owner  to  the  head  con- 
tractor, and  that  the  owner  did  not  pay  his  claim  when  the 
payment  fell  due  or  within  ten  days  thereafter,  and  subse- 
quent to  the  expiration  of  the  ten  days  he  took  the  necessary 
steps  to  obtain  the  lien.^  The  remedy  by  an  action  for  money 
had  and  received  is  the  only  one  as  between  a  subcontractor 
and  the  owner.^  A  judgment  cannot  be  rendered  against  an 
owner  personally  for  work  or  materials  furnished  to  a  con- 
tractor.'' The  holder  of  a  lien  cannot  have  an  erroneous  state- 
ment as  to  the  time  when  the  first  material  was  furnished  cor- 
rected in  the  action,  so  as  to  bring  it  ahead  of  a  mortgage.^ 
The  amount  of  land  which  may  be  made  subject  to  a  lien  is 
an  issuable  fact  which  may  be  determined  under  appropriate 
averments.*  Where  a  plaintiff  in  an  action  to  enforce  a  me- 
chanic's lien  is  also  the  assignee  of  several  other  lienholders, 
it  is  necessary  to  state  the  cause  of  action  upon  each  in  a  sep- 
arate count.^" 

Sec.  772.  Petition  by  contractor  to  foreclose  mechanic's 
lien  against  owner. — 

1.  Plaintiff  says  there  is  due  him  from  the  defendant  the 
sum  of  $ with  interest  from  the  day  of  ,  18 — , 

J  Ambrose  V.  Wood  mansee,  27  O.S.  See  Rockel's  &  White's  Ohio  Lien 

14g.  Laws,  p.  166. 

2  Haight  V.  Church,  6  Kan.  193.  6  Dunn  v.  Kanmacher,  26  O.  S.  497. 
Where  personal  judgment  and  the  See  Stephens  v.  Stock  Yard  Co.,  29 
enforcement  of  a  mechanic's  lien  are  O.  S.  227. 

asked,  the  case  is    not    appealable.  '  Cronkright  v.  Thompson,  1  E.  D. 

Mitchell  V.  Drake,  7  O.  C.  C.  308.     A  Smith,  661. 

right  to  trial  by  jury  upon  the  ques-  8  Wetmore  v.  Royal,  56  N.  W.  Rep. 

tion  of  fact  arises  on  a  counter-claim  594  (Minn.,  1893). 

for  damages.    Deeves  v.  Met  Realty  » Williamette  S.  IL  Co.  v.  Kremer, 

Co.,  26  N.  Y.  S.  23.  94  Cal.  205.     As  to  setting  aside  a 

3  R.  s.,  sec.  8202.  lien    for    loose  description,   consult 
<R  S.,  sec.  3193.  this  case  and  cases  cited  therein. 

•  Watkins  v.  Shaw,  7  0.  C.  C.  415.       "» Green  v.  Clifford,  94  CaL  49. 


§  772.]  LIENS.  739 

on  an  account  of  which  the  following  is  a  copy  with  all  credits 
and  indorsements  thereon,  to  wit :  \_Copy  aooount.'] 

2.  Plaintiff  refers  to  and  adopts  so  much  of  the  first  cause 

of  action  as  is  contained  between  the  word  " •"  in  the 

first  line  to  and  including  the  words  " "  in  the line 

thereof  as  if  here  fully  rewritten,  and  says:  That  the  items 
contained  in  said  account  were  for  work  done  and  materials 
furnished  by  said  plaintiff  to  said  defendant  at  his  request  for 
the  construction  [or,  if  for  altering  or  repairing,  so  state']  of  a 

dwelling-house  on  lot  in  the  city  of  C,  county, 

Ohio,  at  the  various  dates  stated  in  said  account. 

Plaintiff  further  says  that  on  the ■  day  of  ,  18 — , 

within  four  months  from  the  time  of  performing  such  labor 
and  furnishing  such  material,  he  filed  with  the  recorder  of 
F. county,  Ohio,  an  affidavit  containing  an  itemized  state- 
ment and  value  of  said  labor  and  materials  with  all  credits 
and  indorsements  thereon,  together  with  the  time  when  said 
account  should  have  been  paid,  and  a  description  of  the  prem- 
ises upon  which  said  building  was  constructed,  which  said  affi- 
davit was  by  said  recoixler  recorded  in  volume ,  page , 

in  the  records  of  liens  in  said  county.  Plaintiff's  claim  there- 
fore became  a  valid  and  subsisting  lien  on  said  building  from 
the day  of ,  18 — ,  the  date  when  said  labor  was  com- 
menced and  said  materials  furnished.     The  sum  of  $ ,  with 

interest  at per  cent,  from  the day  of ,  18 — ,  now 

remains  due  and  unpaid  upon  said  account. 

Plaintiff  therefore  prays  for  judgment  for  said  sum  of  $ 

and  interest  aforesaid,  and  that  his  said  claim  be  declared  a 
lien  on  said  premises;  that  the  same  be  ordered  sold  and  the 
proceeds  arising  therefrom  be  applied  to  the  payment  of 
plaintiff's  claim,  and  for  all  proper  and  equitable  relief. 

Note.—  Property  subject  to  lien.  R.  S.,  sec.  3184,  as  amended,  91  O.  L. 
135.  Lien,  how  obtained.  R  S.,  sec.  3185.  Filing  of  statement  by  sub- 
contractor, etc.  R  S.,  sec.  3193,  91  O.  L.  136.  Filing  statement  with  re- 
corder. R  S.,  sec.  3195,  91  O.  L.  136 ;  Rockel  &  White's  Ohio  Lien  Law, 
pp.  54,  55. 

Priority  of  liens—  Mortgages. —  The  lien  dates  from  commencement  of 
labor  or  of  furnishing  materials.  Choteau  v.  Thompson,  2  O.  S.  114.  And 
from  the  first  item  of  account.  Woodman  v.  Richardson,  1  O.  C.  C.  191. 
There  is  no  priority  between  lienholders  irrespective  of  date  of  filing,  but 
the  lien  precedes  a  mortgage  filed  subsequent  to  the  date  of  furnishing  ma- 
terials, even  though  the  lien  be  filed  after  the  mortgage.  Choteau  v.  Thomp- 
son, 2  O.  S.  114  But  where  a  mortgage  takes  effect  after  the  commencement 
of  one  lien,  but  before  the  commencement  of  others,  the  latter  must  be  post- 
poned to  the  mortgage  lien.  Hazard  v.  Loomis,  2  Disu.  544.  The  principle 
that  he  who  is  first  in  time  is  better  in  right  applies  to  subcontractors. 
McCullom  V.  Richardson,  2  Handy,  275.  Where  liens  are  obtained  by  persons 
performing  labor,  or  furnishing  machinery  or  material,  and  by  an  original 
contractor,  the  lien  of  the  latter  is  postponed  to  that  of  the  former,  who  have 
no  priority  among  themselves.  R.  S.,  sec.  3188,  Am.  91  O.  L.  135.  Lien  on 
leased  premises.  Hart  v.  Iron  Works,  37  O.  S.  75.  Mistake  in  description  of 
premises  will  not  estop  the  lienholder  from  claiming  property  as  against  a. 


■»±0  LIENS.  [§  772a. 

mortgage.  Pedretti  v.  Stitchtenoth,  6  O.  C.  C.  516.  As  to  securing  a  lien  for 
au  entire  job,  see  Davis  v,  Hines,  6  O.  S.  473. 

Subcontractor. —  For  form  of  petition  of  subcontractor  or^material-man, 
see  White  &  Rockel's  Lien  Law,  pp.  170,  171. 

Sec.  772a.  Petition  l)y  subcontractor  to  foreclose  lien 
against  owner. — 

[Caption.' 

On  the da}^  of ,  18 — ,  plaintiff  made  and  entered 

into  a  contract  in  writing  with  one  A.  B.,  who  was,  under  and 
by  virtue  of  a  valid  contract,  then  engaged  as  principal  con- 
tractor of  the  defendant  in  erecting  and  constructing  a  build- 
ing [name  huilding  or  give  desoription  of  p7'emises\  for  the 
defendant,  by  which  it  was  stipulated  and  agreed  between 
said  A.  B.  as  principal  contractor  and  plaintiff,  that  plaint- 
iff, in  consideration  of  S ,  was  to  perform  all  the  carpen- 
ter work  and  furnish  the  material  necessary  for  doing  the 
same  in  the  construction  of  said  building  for  the  defendant 
herein. 

Plaintiff  completed  said  work  upon  said  building  on  the 

tlay  of ,  18 — ,  and  there  became  due  and  payable  from  the 

said  A.  B.,  principal  contractor,  the  said  sum  of  $ ,  which 

the  said  A.  B.  has  wholly  failed  and  neglected  to  pay,  or  any 
part  thereof. 

That  the  plaintiff  did,  on  the day  of  ,  18—,  file 

with  [iiame  of  owner  or  corjjoratiori]  a  sworn  statement  of  his 
contract  and  of  the  labor  by  him  performed,  together  with 
an  itemized  statement  and  value  thereof,  at  which  time  there 
was  due  from  the  defendant,  the  said  A.  B.,  as  principal  con- 
tractor, upon  his  contract'  with  him,  the  sum  of  $ .     That 

the  defendant  has  not  paid  the  claim  of  plaintiff  nor  any  part 
thereof. 

That  on  the day  of  •,  18—,  within after 

performing  said  labor^  he   filed    with  the   recorder  of  

county,  Ohio,  an  afiidavit  containing  an  itemized  statement 
of  his  account  and  value  of  said  labor,  together  with  a  copy 
of  the  written  contract  under  which  it  was  performed,  and 
the  time  when  the  same  should  have  been  paid,  and  a  de- 
scription of  the  premises  upon  which  the  building  was  sit- 
uated, which  affidavit  was  recorded  in  volume ,  page , 

of  the  record  of  liens  of county,  Ohio. 

Plaintiff's  claim  therefore  became  a  valid  and  subsisting 
lien  upon  said  building  on  the day  of ,  18 — . 

There  is  due  plaintiff  for  the  labor  so  performed  the  sum  of 
$ ,  with  interest  from ,  18 — . 

Plaintiff  therefore  ]>rays  judgment  for  the  sum  of  $ , 

and  that  his  claim  be  declared  a  lien  on  the  premises,  and  that 


§  773.J  LIENS.  741 

the  same  be  ordered  sold  and  the  proceeds  derived  there- 
from be  applied  to  the  payment  of  plaintiff's  claim,  and  for 
all  proper  and  equitable  relief. 

NoTE. —  Hints  on  securing  lien  by  subcontractor:  By  recent  enactment 
a  principal  contractor  and  a  subcontractor  are  on  same  footing  as  to  their 
right  to  secure  a  lien. 

A  person  who  performs  labor  or  furnishes  material  at  the  instance  of  an 
owner,  his  ag;ent,  trustee,  contractor  or  subcontractor,  may  acquire  a  lieu. 
R  8.,  sec.  3184 ;  91  O.  L.  135. 

The  principal  contractor  becomes  an  agent  of  the  owner  so  far  as  con- 
cerns the  right  of  the  subcontractor  to  a  lien.  The  latter  may  only  secure 
a  lien  when  there  is  a  valid  contract  existing  between  the  owner  and  the 
principal  contractor. 

Any  subcontractor  who  has  performed  labor  or  furnished  material,  or 
who  is  furnishing  material  or  machinery,  or  who  is  about  to  perform 
labor  or  furnish  material  or  machiuerj^  for  the  construction,  improvement 
or  repair  of  any  public  improvement  provided  for  by  contract  between  any 
board  or  officer  and  a  principal  contractor,  and  under  a  contract  between 
any  such  subcontractor,  material-man,  laborer  or  mechanic  and  a  principal 
contractor  or  subcontractor,  may,  at  the  beginning  to  perform  such  labor  or 
furnish  such  material  or  machinery,  or  at  any  time  thereafter  not  exceed- 
ing ninety  days  from  the  completion  of  the  labor  or  the  delivery  of  ma- 
chinery or  material,  file  with  the  board  or  officer,  if  for  a  public  improve- 
ment, a  sworn  and  itemized  statement  of  his  account.  R.  S..  sec.  3193.  The 
lien  is  acquired  only  on  the  fund.  In  the  amendment  of  this  provision  it  is 
made  to  apply  only  to  the  construction,  improvement  or  repair  of  a  turn- 
pike or  other  public  improvement.  But  the  same  statement  must  be  served 
upon  a  private  owner. 

Upon  the  filing  of  the  notice,  subsequent  payments  must  be  detained. 
R  S.,  sec.  3194. 

Such  subcontractor  must  also  file  a  copy  with  the  recorder  of  the  county 
in  order  to  notify  his  fellow-contractors ;  if  he  fails  m  this,  he  can  have  no 
preference.     R.  S.,  sec.  3195. 

The  lien  of  a  subcontractor  cannot  exceed  the  amount  of  the  price  agreed 
upon  between  the  owner  and  the  original  contractor.     R  S.,  sec.  3185a. 

There  is  no  priority  between  the  liens  acquired  by  persons  performing 
labor.     R  S.,  sec.  3188. 

Disputed  claims  must  be  settled  by  arbitration,  which  is  conclusive  on  the 
parties.    R  S.,  sec.  3200. 

Sec.  773.  Petition  to  foreclose  lieu  on  railroad. — 

1.  That  on  the day  of ,  18 — ,  the  defendant  was  the 

owner  in  fee-simple  of  a  right  of  way  for  a  railroad  extending 
from  the  cit}'-  of ,  in  the  state  of ,  through  the  follow- 
ing counties  of  the  state  of  Ohio,  to  wit:  \71ame  the  counties]^ 
to  the  cit}'^  of ,  in  the  state  of . 

That  on  said  day  the  plaintiff  was  employed  by  the  defend- 
ant to  grade,  build  embankments  and  make  excavations  for 
the  track  of  a  railroad  upon  said  right  of  way  from  the  city 

of ,  in  the  state  of  Ohio,  to  the  city  of ,  in  the  state 

of  Ohio,  a  distance  of miles,  and  which  part  of  said  right 

of  way  lay  within  the  counties  of and ,  in  said  state 

[and  also  was  employed  by  the  defendant  to  build  and  furnish 
the  material  for  all  bridges,  trestle-work  and  works  of  masonry 
necessary  for  said  part  of  said  track  on  said  right  of  way  be- 
tween said  cities  of and ],atand  for  the  sum  of 


742  LIEN3.  [§  T74:. 

dollars  [a  copy  of  which  said  contract  is  hereto  attached, 
marked  "Exhibit  A."] 

That  the  plaintiff  performed  said  contract,  in  all  respects 
performing  all  the  conditions  thereof,  and  furnished  all  the 

materials  and  completed  said  work  on  the day  of , 

18 — ,  and  the  sum  of dollars,  with  interest  from  the 

day  of ,  18 — ,  now  remains  due  and  unpaid  on  said  contract. 

Second  cause  of  action.    [Formal  averments.']    That  on  the 

day  of \  18 — ,  and  within  forty  days  from  the  time  of 

completing  said  work  and  furnishing  said  materials,  he  filed 

in  the  recorder's  office  of  said county,  where  said  labor 

was  performed  and  said  material  furnished,  an  affidavit  con- 
taining an  itemized  statement  of  the  labor  ])erformed,  and  the 
kind  and  amount  of  materials  furnished,  with  the  amounts 
charged  for  each  item,  with  all  credits  and  payments  thereon, 

which  said  affidavit  and  lien  was  recorded  in  vol. ,  page , 

Records  of 'Liens  of  said  county.  That  within  ten  days  after 
filing  said  lien  with  the  recorder  of  said  county,  he  served  a 
notice  of  such  filing  upon  the  secretary  of  said  company. 

Plaintiff's  claim  therefore  became  a  valid  and  subsisting  lien 
on  said  defendant's  railroad  on  the day  of ,  18 — . 

Plaintiff  therefore  prays  judgment  against  the  defendant 

for  the  sum  of dollars  with  interest  from  the day 

of ,  18 — ,  and  costs  of  suit,  and  that  so  much  of  the  right 

of  way  of  the  defendant  as  lies  within  the  state  of  Ohio  be 
sold,  and  the  proceeds  thereof  applied  to  the  payment  of  said 
judgment,  interest  and  costs,  and  for  such  other  and  further 
relief  as  may  be  just  and  equitable. 

Note.—  R.  S.,  sees.  3207-3209 :  Rockel  &  White's  Lien  Laws,  p.  191  et  seq. 

Sec.  774.  Mechanic's  lien  — The  answer.— A  defendant 
in  an  action  to  foreclose  a  mechanic's  lien  may  deny  all  knowl- 
edge of  the  furnishing  of  materials,  or  that  notice  was  given 
of  tho  lien,  and  may  claim  as  a  counter-claim  that  the  lien- 
holder  guarantied  that  he  would  build  the  house  in  a  work- 
manlike manner  and  complete  it  by  a  certain  time,  claiming 
damages  for  his  failure  so  to  do.^  Where  the  petition  alleges 
that  the  defendant  has  or  claims  an  interest  in  the  land  which 
is  subject  to  the  lien,  a  general  denial  will  not  amount  to  a 
disclaimer  of  such  interest,  but  only  puts  in  issue  the  fact  that 
it  was  subject  to  the  lien.^  It  is  a  good  defense  by  the  owner 
that  there  were  liens  on  the  premises  prior  to  that  of  the 
plaintiff,  and  exceeding  the  amount  due  from  the  owner.^    To 

1  McAdow  V.  Ross,  53  Mo.  199.  3  Lehretter   v.   Coffman,   1   K   D. 

2  Elder  v.  Spinks,  53  Cal.  293.  Smith,  664. 


§  775.]  LIENS.  743 

entitle  a  person  to  a  lien,  the  materials  must  be  furnished  or 
the  labor  performed  within  the  state.  Goods  consigned  from 
another  state  to  a  head  contractor  do  not  entitle  the  con- 
signor to  a  lien  for  the  goods  so  furnished  by  him  to  the 
head  contractor  as  a  material-man.*  In  an  action  against  the 
owner  to  recover  an  amount  due  upon  an  account  for  labor 
performed  in  the  construction  of  a  building,  and  to  have  the 
same  declared  a  lien  thereon,  where  it  is  less  than  the  balance 
unpaid  or  due  upon  the  contract,  the  owner  cannot  be  allowed 
to  set  oS  a  claim  against  the  contractor,  not  arising  out  of  the 
contract,  but  which  is  acquired  by  him  after  the  labor  has 
been  performed,  although  his  claim  is  so  acquired  before 
notice  that  the  mechanics  had  not  been  paid.^  If  labor  be 
performed  or  material  furnished  with  an  understanding  or 
agreement,  either  express  or  implied,  that  no  lien  will  be  as- 
serted, then  the  right  is  waived,  and  a  lien  cannot  be  enforced 
against  a  subsequent  purchaser  or  lienor.'  A  lien  will  also 
be  waived  where  a  note  is  given  and  received  as  payment  for 
the  materials  furnished,*  though  not  unless  the  note  is  in  fact 
received  as  payment.^  In  a  controversy  between  a  holder  of 
a  mechanic's  lien  and  a  mortgage,  a  note  given  before  the 
taking  out  of  the  lien  does  not  discharge  the  same,  but  only 
suspends  its  operation.^ 

Sec.  775.  Forms  of  answers. — 

[Captio7i.'\ 

[Payment.'] 

That  before  the  bringing  of  this  action  A.  B.,  the  contractor 
for  the  construction  of  said  dwelling-house  mentioned  in  the 
petition,  and  wh(j  contracted  for  the  material  of  the  plaintiff, 
fully  paid  the  plaintiff  therefor. 

[Or,  lohen  personal  judgment  is  claimed:  That  the  defend- 
ant, prior  to  the  fihng  of  the  plaintiff's  notice  of  said  lien,  and 
without  notice  or  knowledge  of  his  claim,  purchased  said  prop- 
erty from   the  defendant  JR.  F.  for  the  sum  of dollars, 

which  he  then  paid.] 

[_0r,  That  this  defendant  is  the  owner  in  fee-simple  of  said 
land,  receiving  a  deed  therefor  from  said  R.  F.  on  the  

1  Bendor  v.  Stettimier,  19  W.  L.  B.  »  Bursdorff  v.  Hardwey,  7  O.  G  C. 

168.  378. 

*  Bullock  V.  Horn,  44  O.  S.  420.  6  Victoria   Building  Ass'n  v.  Kel- 
3  Iron  Co.  V.  Murray.  38  O.  S.  323.  sey,  11  W.  L.  B.  38. 

*  Crooks  V.  Finney,  39  O.  S.  57. 


744:  LIENS.  [§  776. 

day  of ,  IS — ,  an  J  before  any  part  of  said  building  was 

erected  thereon,  which  deed  was  duly  recorded  in  the  re- 
corder's office  of  said  county  on  the day  of ,  18 — .] 

[Or,  That  after  said  material  Avas  furnished,  and  before  the 
plaintiff's  notice  of  lien  was  filed,  this  defendant  purchased 
said  property  from  the  defendant  E..  F.  for  a  valuable  consid- 
eration, which  he  then  paid  in  full. 

That  before  purchasing  said  property  this  defendant  applied 
to  the  plaintiff  and  stated  to  him  that  he  was  about  to  pur- 
chase the  same,  and  requested  to  know  whether  he  had  or 
would  maiie  any  claim  against  the  same  by  way  of  mechanic's 
lien  or  otherwise,  and  the  plaintiff  then  and  there  stated  to 
this  defendant  that  the  materials  furnished  by  him  for  said 
building  had  been  fully  paid  for  b}'^  U.  Y.,  the  contractor ;  and 
that  he  had  no  claim  on  said  property,  and  would  make  none. 

That  this  defendant  (was  ignorant  of  the  facts,  and  believed 
and  relied  upon  said  representations,  and  was)  induced  thereby 
to  purchase  said  property  and  pay  the  cost  therefor. 

That  said  R.  F.,  from  whom  this  defendant  purchased  said 
property,  is  insolvent,  and  if  this  defendant  is  compelled  to 
pay  the  plaintiff's  claim  he  will  lose  the  same.] 

Sec.  776.  Yeudor's  lien, —  The  general  rule  is  that  a  vend- 
or's lien  is  purely  personal  and  cannot  be  assigned  or  enforced 
by  another,^  It  is  founded  upon  an  implied  trust  between  the 
vendor  and  purchaser.  The  latter  is  held  to  be  a  trustee  of 
the  former,  receiving  the  conveyance  for  the  use  of  the 
vendor  until  the  purchase-money  is  paid.  This  trust  attaches 
to  the  land  and  follows  it  into  the  hands  of  any  subsequent 
purchaser  with  notice.^  But  there  are  exceptions  to  the  general 
rule  that  the  lien  cannot  be  enforced  by  one  other  than  the 
vendor.  Upon  the  death  of  the  vendor  it  may  be  enforced  by 
his  personal  representative.  Creditors  and  legatees  in  mar- 
shaling the  assets  of  the  vendor  may  also  enforce  it,  as  well 
as  a  judgment  creditor  in  an  action  to  subject  purchase-money 
due  the  latter  to  the  payment  of  the  judgment.'  The  lien 
will  not  arise  where  the  vendor  takes  security  for  the  ])ayment 
of  the  consideration,"*  but  is  not  affected  or  extinguished  by 
taking  a  mortgage  to  secure  the  payment  of  the  purchase- 

1  Edwards  v.   Edwards,   24  O.   S.  2  jacknian  v.  Hallock,  1  O.  318. 

402 ;  Brush    v.  Kingsley,    14  O.  20 ;  3  Edwards  v,  Edwards,  supra. 

Taylor  v.  Foote,  W.  356 ;  Jackman  v.  •»  Mayham  v.  Coombs,  14   0.   428 ; 

Hallock,  1  O.  818;  Tiernau  v.  Beam,  Williams  v.  Roberts,  5  O.  35. 
2  O.  383 ;  Williams  v.  Roberts,  5  O. 
35. 


§§777,778.]  LIENS.  745 

money.^    A  person  advancing  money  to  a  purchaser  to  buy 
land  cannot  claim  a  vendor's  lien.^ 
Sec.  777.  Petition  to  enforce  vendor's  lien. — 

That  on  the day  of ,  18 — ,  the  plaintiff  was  the 

owner  in  fee-simple  of  the  following  described  real  estate  situ- 
ate in  the  county  of ,  and  state  of  Oliio,  to  wit:  [Desc/'ibe 

premises.']  On  said  day  plaintiff  sold  and  conveyed  said 
premises  by  deed  of  general  warranty  to  the  defendant,  for 
the  sum  of  $ ,  of  which  sum  said  defendant  paid  plaint- 
iff, at  the  time  of  the  delivery  of  the  deed,  $ ,  and  made 

and  executed  his  promissory  note  for  the  remainder  thereof, 
to  wit,  the  sum  of  $ ,  which  said  note  became  due  and  pay- 
able on  the day  of ,  18 — . 

That  at  the  time  said  note  became  due  the  plaintiff  requested 
payment  thereof,  which  was  refused,  and  no  part  thereof  has 
been  paid,  and  there  is  now  due  from  the  defendant  to  the 
plaintiff  thereon  the  sum  of  $ . 

[That  the  defendant  has  no  other  property  subject  to  exe- 
cution.] 

Plaintiff  therefore  prays  judgment  against  the  defendant 

for  the  sum  of  $ ,  with  interest  thereon  from  the day 

of  ,  18 — ,  and  in  case  said  defendant  fails  to  pay  said 

judgment  by  a  day  to  be  named  by  the  court,  that  said  prem- 
ises may  be  sold,  and  so  much  of  the  proceeds  as  are  required 
may  be  applied  to  the  payment  of  said  judgment. 

Sec.  778.  Petition  by  judgment  creditor  to  marshal  liens, 

[Caption.'] 

1.  Plaintiff  says  that  on  the day  of ,  18 — ,  by  the 

consideration  of  the  court  of  common  pleas  of county, 

Ohio,  said  plaintiff  recovered  a  judgment  against  said  defend- 
ants, P.  M.  W.  and  J.  S.,  in  the  sum  of  $ ,  with  interest  at 

the  rate  of per  cent,  per  annum  from  the day  of 

,  18 — ,  also  his  costs  taxed  at  $ ,  which  judgment  is 

wholly  unsatisfied  and  unpaid. 

2.  And  said  plaintiff  for  second  cause  of  action  against  said 
defendants,  J.  S.  and  P.  M.  W.,  says  [formal  averments]  that 

on  the  day  of ,  18 — ,  by  the  consideration  of  the 

court  of  common  i)leas  of county,  Ohio,  he  recovered  a 

judgment  against  said  defendants,  P.  M.  W.  and  J.  S.,  in  the 

sum  of  $ ,  and  also  his  costs  therein  taxed  at  $ ,  which 

judgment  is  wholly  unsatisfied  and  unpaid,  and  draws  interest 

at  the  rate  of per  cent,  per  annum  from  the day  of 

,  18-. 

And  that  on  the day  of ,  18 — ,  an  execution  was 

duly  issued  on  said  judgment  of  $ ,  and,  for  want  of  goods 

» Boos  V.  Ewing,  17  O.  500 ;  Elliott       2  Stansel  v.  Roberts,  18  0. 14a 
V.  Plattor,  43  O.  S.  198. 


746  LIENS.  [§  778. 

and  chattels  of  said  defendants  whereon  to  levy,  was  on  the 

day  of ,  18 — ,  duly  levied  on  the  following  described 

real  estate  belonging  to  said  P.  M.  W.,  which  levy  still  sub- 
sists, situate  in  the  county  of,  etc. :  {^Description  of  real  estate.'] 

And  that  on  the day  of ,  18 — ,  an  execution  was 

duly  issued  on  said  judgment  aforesaid,  and,  for  want  of  per- 
sonal property  whereon  to  levy,  was  on  said  day  duly  levied 
on  the  following  described  real  estate  belonging  to  said  de- 
fendant J.  S.,  which  levy  still  subsists,  situate  in  the  county 
of :  {DescrijAion  of  real  estate.'] 

And  that  on  the day  of ,  18 — ,  an  execution  was 

duly  issued  on  said  judgments  aforesaid,  and,  for  want  of 
goods  and  chattels  whereon  to  levy,  was  on  the  same  day 
duly  levied  on  the  following  described  real  estate  owned  by 
P.  M.  W.,  which  levy  still  subsists,  situate  in  the  county  of 

and  state  of  Ohio,  being  in township,  bounded  and 

described  as  follows,  to  wit :  {Description  of  real  estate.] 

3.  Plaintiff,  for  third  cause  of  action  against  said  defendant 
P.  M.  W.,  says :  {Formal  averments^]  That  there  was  duly 
levied  according  to  law,  on  said  first  tract  of  land  described 
in  this  petition,  taxes  for  the  years  and  amounts  as  follows: 

For  the  year  18 — ,  % ,  e^tc.     Which  amounts  were  due 

and  payable  from  the  said  P.  M.  W.  as  provided  by  law,  and 
which  amounts  said  defendant  neglected  and  refused  to  pay, 
and  allowed  the  same  to  become  delinquent. 

That  a  portion  of  said  amounts  was  paid  by  D.  F.  B.,  and 
the  lien  as  held  by  him  was  duly  transferred  to  this  plaintiff 
for  a  valuable  consideration  by  said  B.,  and  that  since  said 
transfer  said  plaintiff  has  made  the  balance  of  payments  due 
on  said  premises  as  taxes,  and  is  now  the  legal  and  true  holder 
of  said  tax  lien,  and  that  no  part  of  the  taxes,  interest  or  pen- 
alties has  been  repaid  him  by  said  P.  M.  W. ;  and  that  interest, 
penalty  and  taxes  on  said  tract  now  amount  to  the  sum  of 

$ ,"^and  said  plaintiff  asks  the  court  to  decree  the  same  to 

be  the  first  and  best  lien  upon  said  described  premises. 

Said  plaintiff  says  that  A.  W.,  S.  K  and  W.  S.,  defendants, 
claim  to  have  some  lien  on  the  premises  described  in  this  pe- 
tition, by  reason  of  which  claims  said  plaintiff  is  unable  to 
effect  a  sale  of  said  premises  under  execution. 

Wherefore  said  plaintiff  prays  and  asks  that  said  claimants 
be  compelled  to  set  up  their  claims,  if  any  they  have  in  said 
property,  or  be  forever  barred,  and  that  the  court  will  adjust 
the  pro  rata  thereof  and  of  plaintiffs  said  liens,  and  that  said 
real  estate  ma}''  be  ordered  sold  and  the  proceeds  distributed 
among  the  claimants  according  to  law,  and  their  pro  rata 
as  the  same  shall  be  settled  by  court.  S.  &  H., 

Plaintiff's  Attorneys. 

Note. —  From  Harvout  v.  Willis,  error  to  circuit  court  of  Ashland 
county.  Supreme  Court,  unreported,  No.  1806. 


§779.]  LIENS.  747 

Sec.  779.  Petition  tp  marshal  liens  where  prior  lien- 
holder  has  lien  on  other  property. — 

That  on  the day  of  ,  18 — ,  the  plaintiff  recovered 

a  judgment   in   the   court   of   common   pleas  of  

county,  Ohio,  against  II.  T.  for  the  sum  of  $ ;  that  on  the 

day  of ,  18 — ,  an  execution  was  issued  on  said  judg- 
ment, and,  for  want  of  goods  and  chattels  of  said  H.  T. 
whereon  to  levy,  was  levied  upon  the  following  described  real 
estate,  to  wit:  [describe  premises],  as  the  property  of  said 
H.  T. 

That  H.  T.,  at  that  time,  was  doing  business  as  a  merchant 
at  R.,  and  on  the  day  preceding  that  on  which  the  judgment 
was  rendered  gave  a  mortgage  on  certain  household  goods  to 
secure  the  payment  of  said  sum. 

That  these  mortgages  were  given  as  claimed  by  the  defend- 
ants to  secure  them  against  the  acceptance  of  two  drafts,  each 

for  the  sum  of  $ ,  drawn  on  H.  T.  on  said  defendants  in 

favor  of  H.  &  Co.,  of  ,  which  drafts  were  drawn  on  the 

day  of  ,  18 — ,  and  were  due  and  payable  on  the 

day  of ,  18 — ,  and  to  secure  certain  moneys  amount- 
ing to  tiie  sum  of  $ advanced  by  said  defendants  to  H.  T. 

That  on  the day  of  ,  18 — ,  H.  T.  sold  his  stock  of 

goods  to for  the  sum  of  % ,  and,  as  part  of  the 

consideration  therefor,  received  two  notes,  payable  respect- 
ively in and months,  which  notes,  on  the day 

of ,  18 — ,  were  by  said  H.  T.  assigned  to  the  defendants 

as  security  for  said  debt. 

That  said  H.  T.  then  was  and  now  is  insolvent,  as  said  de- 
fendants well  knew ;  yet  on  or  about  the day  of  , 

18 — ,  and  since  the  levy  of  said  execution,  said  defendants,  for 
the  purpose  of  defrauding  the  plaintiff  by  depriving  him  of 
his  lien  on  said  land,  fraudulently  redelivered  to  said  H.  T. 
said  promissory  notes. 

That  the  personal  pro]ierty  of  said  H.  T.  mortgaged  to  said 

defendants  is  of  the  value  of  $ ,  and  said  notes  redelivered 

by  them  to  H.  T.  were  of  the  value  of  % ,  being  more  than 

sufficient  to  satisfy  the  claim  of  the  defendants  against  said 
II.  T.,  and  the  ])remises  levied  upon  under  the  execution  of  the 
plaintiff  are  not  more  than  sufficient  to  satisfy  the  plaintiff's 
judgment. 

Plaintiff  therefore  prays  that,  inasmuch  as  the  defendants 
have  a  security  upon  two  funds,  they  may  be  required  to  apply 
said  personal  property  so  secured  by  mortgage  and  said  notes 
to  the  payment  of  their  claim,  and  that  said  real  estate  be 
subjected  to  the  plaintiff's  lien  alone,  and  a))plied  to  satisfy 
the  same,  and  for  such  other  relief  as  justice  may  require. 

Note.—  Based  on  Fassett  v.  Traber,  20  O.  540, 


CHAPTER  56. 


MALICIOUS  PROSECUTION. 


Sec.  780.  Malicious  prosecution— The 
petition. 

781.  Petition  for  maliciously 
causing  a  person  to  be  in- 
dicted. 

783.  Petition  for  malicious  civil 
suit  before  justice. 


Sec.  783.  Petition  for  malicious  crim- 
inal prosecution  before 
justice. 

784.  Petition  for  malicious  at- 

tachment. 

785.  Malicious  prosecution — ^The 

answer. 


Sec.  780.  Malicious  prosecution  —  The  petition.—  An  ac- 
tion for  malicious  prosecution  abates  upon  the  death  of  either 
party.'  Two  or  more  persons  cannot  unite  in  a  joint  action 
for  malicious  prosecution.*  The  action  generally  lies  for  the 
prosecution  of  a  criminal  action;  and  while  there  are  author- 
ities which  hold  that  an  action  will  not  lie  for  maliciously  and 
without  probable  cause  prosecuting  a  mere  civil  action,^  the 
modern  settled  American  doctrine  is,  that  an  action  for  the 
malicious  prosecution  of  a  civil  action  may  be  maintained 
whenever  the  defendant  therein  has  been  deprived  of  his  per- 
sonal liberty,  or  of  the  possession  or  enjoyment  of  property.* 
It  will  lie  for  maliciously  and  without  probable  cause  prose- 
cuting an  action  of  forcible  entry  and  detainer,'  as  well  as  for 

man,  10  Johns,  106 ;  White  v.  Ding- 
ley,  4  Mass.  433 ;  O'Neill  v.  Johnson, 
55  N.  W.  Rep.  601  (Minn.,  1893) ;  Mc- 
Pherson  v.  Runyon,  41  Minn.  524; 
s.  c,  43  N.  W.  Rep.  392 ;  Burton  v. 
Railway  Co.,  38  Minn.  189 ;  &  G,  22 
N.  W.  Rep.  300 ;  Rachelman  v.  Skin- 
ner, 46  Minn.  196;  s.  G,  48  N.  V/. 
Rep.  776 ;  Dempsey  v.  Lepp,  52  How. 
Pr.  11;  Lawton  v.  Green,  64  N.  Y. 
331.  It  will  lie  if  unaccompanied 
by  arrest  or  seizure  of  property. 
Springer  v.  Wise,  3  Disn.  891.  See 
Boone  on  Pldg.,  sec.  167,  note  27. 
5  Pope  V.  Pollock,  46  0.  S.  367. 


1 0.  Code,  sec.  5144 

2  Rhodes  v.  Booth,  14  la,  575. 

8  2  Addison  on  Torts,  752 ;  Ely  v. 
Davis,  111  N.  C.  24-26;  O'Neill  v. 
Johnson,  55  N.  W.  Rep.  601  (Minn., 
1893);  McPherson  v.  Runyon,  41 
Minn.  524;  48  N.  W.  Rep.  392; 
Rachelman  v.  Skinner,  46  Minji.  196 ; 
48  N.  W.  Rep.  776. 

4  Newark  v.  Upson,  40  O.  S.  17 ; 
Newell  on  Mai.  Pros.,  p.  32,  sec.  23, 
and  cases  cited,  and  pp.  35,  36 ;  Pope 
v.  Pollock,  46  O.  S.  367;  Whipple  v. 
Fuller,  11  Conn.  581;  Closson  v. 
Staples,  42  Vt.  209 ;  Coxe  v.  Taylor, 
10  B.  Mon.  17 ;  Vanduzor  v.  Linder- 


§  780.] 


MALICIOUS   PEOSKCUTION. 


749 


procuring  an  attachment  auxiliary  to  a  civil  action,  maliciously 
and  without  probable  cause,  even  though  there  be  a  just  debt ; 
and  it  is  not  necessary  to  aver  that  the  attachment  has  been 
discharged  or  otherwise  terminated  adversely  to  the  party 
employing  its  aid.^  And  a  suit  will  lie  for  instituting  an  action 
in  replevin  and  taking  goods  therein,^  or  for  the  malicious  in- 
stitution of  an  inquest  of  lunacy  against  another.* 

The  action  will  lie  against  one  who  maliciously  and  without 
probable  cause  procures  the  arrest  of  a  person  upon  a  crim- 
inal charge,*  though,  to  render  the  person  making  the  com- 
plaint liable,  it  must  be  alleged  that  his  conduct  was  inspired 
by  malicious  motives,  and  was  without  probable  cause,  or  a 
statement  of  facts  must  be  made,  which,  if  proved,  will  estab- 
lish a  want  of  probable  cause.*    An  allegation  of  the  falsity 


iFortman  v.  Rottier,  8  O.  S,  548; 
Sperry  v.  Warner,  9  O.  103 ;  King  v. 
Montgomery,  50  Cal.  115;  Tomlinson 
V.  Warner,  9  O.  104 ;  Weatherell  v. 
Springley,  43  la.  41 ;  Beyersdbrf  v. 
Sump,  39  Minn.  495. 

2  Brownstein  v.  Lahlein,  20  N.  Y.  S. 

2ia 

3  Lockenour  v.  Sides,  57  Ind,  360. 

4  Search-warrant :  Oleson  v.  Tvete, 
46  Minn.  225;  Carey  v.  Sheets,  67 
Ind.  375 ;  Whitsome  v.  May.  71  Ind. 
269;  Miller  v.  Brown,  3  Mo.  127. 
Bastardy  proceedings:  Coffey  v. 
Myers,  84  Ind.  105. 

5  Dreyfus  v.  Aul,  29  Neb.  191 ;  s.  C 
45  N.  W.  Rep.  282 ;  Vennum  v.  Huston, 
56  N.  W.  Rep.  970  (Neb.,  1893) ;  Crane 
V.  Buchanan,  30  W.  L.  B.  120;  Ben- 
jamin V.  Garee,  W.  450;  Burnett 
V.  Nicholson,  79  N.  C.  548 ;  Barfield 
V.  Turner,  101  U.  S.  357 ;  Ely  v.  Davis, 
111  N.  C.  24;  Anderson  v.  Buchanan, 
W.  725 ;  Dennehey  v.  Woodsum,  100 
Mass.  195.'  Probable  cause  is  a  rea- 
sonable ground  of  suspicion  sup- 
ported by  circumstances  sufficiently 
strong  in  themselves  to  warrant  a 
cautious  man  in  his  belief  that  a  per- 
son accused  is  guilty  of  the  offense 
of  which  he  is  charged.     Anderson 


V.  Howe,  116  N.  Y.  336;  Carl  v. 
Ayers,  53  N.  Y.  14;  Johnson  v.  Cor- 
rigan,  3  W.  L.  B.  1140.  The  finding 
of  a  magistrate  that  an  offense  has 
been  committed,  and  that  there  was 
probable  cause  to  believe  the  defend- 
ant guilty,  is  only  prima  facie  evi- 
dence of  probable  cause  in  an  action 
for  malicious  prosecution.  Ross  v. 
Hixon,  46  Kan.  550 ;  26  Am.  St.  Rep. 
123.  See,  also,  Newell  on  Mai.  Pros., 
sees.  9,  10 ;  Newman  v.  Davis,  58 
Iowa,  447 ;  Bauer  v.  Clay,  8  Kan.  389; 
Sweeny  v.  Perney,  40  Kan.  102.  It 
is  well  settled  that  a  private  corpora- 
tiou  is  liable  for  malicious  prosecu- 
tion. Morton  v.  Insurance  Co.,  103 
N.  Y.  645 ;  Bank  v.  Graham,  100 
U.  S.  699;  Railway  Co.  v.  Harris, 
122  U.  S.  597;  Reed  v.  Bank,  130 
Mass.  443 ;  Jordon  v.  Railroad  Co.,  74 
Ala.  85;  Carter  v.  Machine  Co.,  51 
Md.  290 ;  Williams  v.  Insurance  Co., 
57  Miss.  759.  In  an  action  for  mali- 
cious prosecution  evidence  as  to  the 
plaintiff's  good  reputation  and  the 
defendant's  knowledge  thereof  may 
be  given  for  the  purpose  of  showing 
want  of  probable  cause.  Funk  v. 
Amor,  4  O.  C.  C.  271. 


750  MALICIOUS   PKOSECDTION.  [§  780. 

of  the  charge  is  not  equivalent  to  an  averment  of  the  want  of 
probable  cause.^  The  petition  need  not  allege  that  the  de- 
fendant falsely,  as  well  as  maliciously  and  without  probable 
cause,  made  the  accusation.^  Nor  is  it  always  essential  to 
allege  that  a  warrant  was  issued  —  the  averment  that  the  affi- 
davit was  made  and  filed  maliciously  and  without  probable 
cause  being  sufficient.'  Malice  is  a  fact  to  be  pleaded,  and  in 
doing  so  it  is  improper  to  set  forth  the  evidence  necessary  to 
establish  it.* 

An  action  for  maliciously  and  without  probable  cause  suing 
out  a  writ  of  attachment  need  not  allege  the  termination  of 
such  suit.^  But  to  sustain  an  action  for  the  malicious  pros- 
ecution of  a  criminal  charge,  it  must  be  shown  that  the  pros- 
ecution has  ended,  and  that  the  defendant  therein  was  ac- 
quitted.^ Mere  omission  to  prosecute  will  not  of  itself  furnish 
sufficient  foundation  for  an  action.  But  where  there  has  been 
a  voluntary  discontinuance,  the  defendant  in  the  action  for 
malicious  prosecution  must  show  the  necessity  for  causing  the 
arrest.'  Where  the  proceedings  were  had  before  a  court  hav- 
ing no  jurisdiction,  the  remedy  is  for  false  imprisonment  and 
not  malicious  prosecution.^  And  a  cause  of  action  for  malicious 
prosecution  may  be  changed  to  one  for  false  imprisonment 
by  striking  out  the  averment  of  "  want  of  probable  cause," 
and  alleging  that  the  arrest  was  "  illegally  made  with  force." ' 

1  Scotten  V.  Longfellow,  40  Ind.  23.  10  N.  Y.  236 ;  Heyne  v.  Blair,  63  N. 

«Ziegler  v.  Powell,  54  Ind.  173.  Y.  19;  Thaule  v.  Krekeler,  81  N.  Y. 

8  Coffey    V.    Myers,    84    Ind.    105;  428;  Anderson  v.  Howe,  116  N.  Y. 

Ruston  V.  Biddle,  48  Ind.  515 ;  Mc-  336;  Merriam  v.  Morgan,  7  Oreg.  68. 

Carthy  v.  Kitchen,  59  Ind.  500.  Termination  is  sufficiently  shown  if 

<  O'Neill  V.  Johnson,  55  N.  W.  Rep.  it  appears  that  no  further  proceed- 

601  (Minn.,  1893);  White  v.  Tucker,  ing  can  be  taken.    Robbins  v.  Rob- 

16  O.  S.  468 ;   Hahn  v.  Schmidt,  64  bins,  133  N.  Y.  597.     Contra,  Haye& 

Cal.  284;  Thaule  v.  Krekeler,  81  N.  v.  Blizzend,  30  Ind.  457;  Gorrell  v, 

Y.  428.  Snow,   31    Ind.   215 ;    McCulloch   v. 

6  Fortman  v.  Rottier,  8  O.  S.  548.  Rice,  59  Ind.  580 ;  Atwood  v.  Beirne, 

SFortraan  v.  Rottier,  8  O.  S.  550;  26  N.  Y.  S.  149. 

Sayles  v.  Briggs,  4  Met  421 ;  Stone  "  Burnhans  v.  Sanford,  19  Wend. 

T.  Crocker,  24  Pick.  87 ;   Parker  v.  417 ;  Gilbert  v.  Emmons,  42  111.  143 ; 

Farley,  10  Cush.  279;  Crane  v.  Bu-  Kinsey  v.  Wallace,  86  Cal.  402. 

chanan,  30  W.  L.  B.  120 ;  Benjamin  8  Painter  v.  Ives,  4  Neb.  122 ;  Bixby 

V.  Garee,  W.  450 ;  Anderson  v.  Bu-  v.  Brundridge,  2  Gray,  129 ;  Marshall' 

chanan,  W.  725 ;  Wheeler  v.  Nesbitt,  v.  Betner,  17  Ala.  832. 

24  How.  Pr.  544 ;  Bessen  v.  Southern,  9  Spice  v.  Steinruck,  14  O.  S.  213. 


§§  781, 782.]  MALICIOUS  pkosecution.  751 

In  an  action  for  malicipus  prosecution  the  plaintiff  may 
show  his  good  reputation  as  a  peaceable  and  quiet  citizen.^ 
A  petition  which  states  that  the  defendant  without  cause 
falsely  and  maliciously  made  a  complaint  before  a  magistrate 
charging  the  plaintiff  with  embezzling  letters  intrusted  to  his 
care  as  mail-carrier,  and  procured  a  warrant  to  be  issued  for 
his  arrest,  upon  which  charge  he  was  tried  and  acquitted, 
states  a  good  cause  of  action.'^ 

Sec.  781.  Petition  lor  maliciously  causing  a  person  to 
be  indicted. — 

Plaintiff  states  that  on  the day  of ,  18 — ,  the  de- 
fendant appeared  before  the  grand  jury  sitting  at  the 

term  of  18 —  of  the  court  of  common  pleas  of county, 

Ohio,  and  then  and  there  wilfully  and  maliciously,  and  with- 
out probable  cause,  gave  and  furnished  to  said  grand  jury  cer- 
tain false  information  against  plaintiff,  and  thereby  maliciously, 
and  without  probable  cause,  caused  and  procured  plaintiff  to 
be  by  said  grand  jury  indicted  for  the  offense  of  [state  offense]. 

That  defendant  did  further  wickedly,  maliciously^  and  with- 
out probable  cause,  prosecute  and  assist  in  the  prosecution  of 
plaintiff  upon  the  indictment  so  rendered  by  said  grand  jury 
against  him  at  the term  of  said  court, ,  18 — . 

That  plaintiff  was  by  the  malicious  and  wilful  conduct  of 
defendant  compelled  to  defend  himself  against  said  false 
charge  so  made  in  the  indictment  against  him,  and  said  plaint- 
iff was  tried  upon  said  charge  of according  to  due  course 

of  law  by  a  jury  of  said  county,  and  was  by  said  jury  on  the 

day  of ,  18 — ,  duly  acquitted  of  the  said  charge  so 

made  against  him. 

That  by  reason  of  the  premises  plaintiff  was  compelled  to 
expend  large  sums  of  money  in  employing  counsel  and  in  de- 
fending himself  against  said  charge,  to  wit,  the  sum  of  $ , 

and  was  by  reason  of  said  charge  imprisoned  in  the  county 

jail  of  said  county  for  the  period  of ,  and  was  by  reason 

of  said  imprisonment  and  of  said  trial  prevented  from  trans- 
acting his   business,  and  otherwise  injured  in  reputation,  in 

the  sum  of  % ,  for  which  he  asks  judgment  against  said 

defendant. 

Sec.  782.  Petition  for  malicious  civil  suit  before  justice. 

[Caption  and  formal  averments^ 

That  on  the  day  of  ,  18 — ,  the  said  defendant, 

without  just  and  probable  cause  of  action  against  plaintiff,  did 
wrongfully,  wilfully  and  maliciously  cause  plaintilf  to  be  sum- 

1  Funk  V.  Amor,  7  O.  C.  C.  419 ;  2  Tilton  v.  Morgaridge,  12  O.  S.  98. 
S.  c,  4  O.  C.  C.  271. 


752  MALICIOUS  PROSECUTION.  [§§  783,  784. 

raoned  to  appear  before  F.  G.,  Esq.,  one  of  the  justices  of,  etc., 
to  answer  [state  actioii]. 

That  on  the day  of  ,  18 — ,  when  said  cause  came 

on  for  hearing,  plaintiff  appeared  before  said  justice  but  said 
defendant  did  not  appear,  but  suffered  said  cause  to  go  by 
default,  and  the  same  was  dismissed  b}^  said  justice  for  want 
of  prosecution,  and  because  said  defendant  had  no  cause  of  ac- 
tion against  this  plaintiff,  as  he  well  knew. 

That  plaintiff  was  compelled  to  and  did  pay  the  sum  of 

$ for  necessary  traveling  expenses,  and  the  sum  of  $ 

for  retaining  counsel  in  said  cause. 

That  plaintiff  has  therefore  sustained  damages  by  reason  of 
the  wrongful  and  malicious  conduct  of  said  defendant  herein 
stated,  in  the  sum  of  % ,  for  which  he  asks  judgment. 

Sec.  783.  Petition  for  malicious  criminal  prosecution  be- 
fore justice. — 

\Caption  and  formal  avermeiits.'] 

That  on  the day ,  18 — ,  said  defendant  falsely  and 

maliciously,  and  without  reasonable  or  probable  cause  there- 
for, filed  an  affidavit  against  the  plaintiff  before  R  L.,  a  justice 

of  the  peace  of ,  county  of ,  Ohio,  charging  him  with 

[state  offense  in  the  words  of  the  affidavii],  and  thereupon 
caused  said  justice  to  issue  a  warrant  for  the  arrest  of  plaint- 
iff, and  falsely  and  maliciously,  and  without  probable  cause 
therefor,  caused  plaintiff  to  be  arrested  on  said  charge  so 

made  by  defendant,  and  to  be  imprisoned  in  the  jail  of 

county  for  the  period  of days  then  next  following. 

That   said  cause  was  on  the day  of  ,  18 — ,  duly 

heard  and  tried  by  said  justice,  and  said  defendant  was  acquit- 
ted and  discharged  of  said  crime  so  made  against  him,  and 
said  prosecution  is  now  ended. 

That  by  reason  of  the  premises  plaintiff  has  been  greatly 
injured  [state  extent  of  injury],  and  has  been  compelled  to  ex- 
pend   the  sum  of   % in   defending  himself  against   said 

charge,  and  has  sustained  damages  in  the  sum  of  % -. 

Note. —  A  justice  in  deciding  upon  the  suflSciency  of  a  complaint  and 
causing  the  arrest  acts  judicially.  Vennutn  v.  Huston,  56  N.  W.  Rep.  970 
(Neb.,  1893).  A  prosecuting  witness  is  not  hable  unless  he  acted  maliciously 
and  without  probable  cause.  Dreyfus  v.  Aul,  29  Neb.  191 ;  Vennum  v.  Hus- 
ton, supra. 

Sec.  784.  Petition  for  malicious  attachment. — 

[Ca2)tion  and  formal  averrnents.'] 

On  the day  of  ,  18 — ,  defendant  maliciously  and 

without  probable  cause  filed  an  affidavit  before  A.  B,,  a  jus- 
tice of  the  peace  in township,  in  the  county  of  , 

Ohio,  for  the  purpose  of  obtaining  an  attachment  against  the 
goods  and  chattels  of  plaintiff,  charging  in  said  affidavit  that 
[here  state  the  ground  for  attachment  contained  in  the  affidavit]. 


i§  785.]  MALICIOUS    PROSKCUTION.  753 

That  thereupon,  upon  said  false  and  malicious  aiRdavit  so 
made  and  filed  by  said  defendant,  the  said  A,  B.,  justice  of 
the  peace,  issued  a  writ  of  attachment  and  placed  the  same  in 
the  hands  of  a  constable,  and  plaintiff's  goods  and  chattels 
were  wrongfull}'  taken  from  the  possession  of  plaintiff. 

Tliereafter  said  goods  were  by  due  course  of  law  sold  and 
were  wholly  lost  to  plaintiff. 

That  the  ground  stated  in  said  affidavit,  upon  which  said 
attachment  was  sued  out,  was  false  in  this  [state  hoid]. 

That  by  reason  of  the  premises  plaintiff  has  sustained  dam- 
ages [state  damages]. 

[PrayerJ] 

Sec.  785.  Malicious  prosecution  —  The  answer. —  It  mat- 
ters not  how  malicious  the  motives  of  a  defendant  were  in 
prosecuting  a  person  on  a  criminal  charge,  if  there  is  reason- 
able cause  to  believe  him  guilty.^  Malice  and  want  of  prob- 
able cause  being  ingredients  of  the  plaintiff's  case,  a  general 
denial  is  therefore  sufficient  to  enable  the  defendant  to  put  in 
evidence  such  facts  as  show  the  presence  of  probable  cause 
and  absence  of  malice,  as  that  he  acted  upon  the  advice  of 
counsel.^  It  is  generally  held  that  a  defendant  may  show  that 
in  making  a  complaint  he  acted  upon  the  advice  of  the  magis- 
trate and  is  thereby  protected  from  liability.^  He  may  show 
that  at  the  time  he  made  the  complaint  he  stated  all  the  facts 
upon  which  it  was  based,  and  that  upon  the  assurance  of  the 
magistrate  that  a  crime  had  been  committed  he  institutetl  the 

•Sanders  v.  Palmer,  55  Fed.  Rep.  Hotchkiss,  62  111.  107;  Eastman  v. 

217;  Green  V.  Cochran,  43  la.  544.  Keasor,  44  N.  H.  518;   Paddock  v. 

2  Folger  V.Washburn,  137  Mass.  60;  Watts,  116   Ind.  146.     But  this  rule 

Sparling  v.   Conway,   75    Mo.    510;  does  not  prevail  where  the  counsel 

White  V.  Tucker,  16  O.  S.  468 ;  Hunter  himself  is  interested.    White  v.  Carr, 

V.  Mathis,  40  Ind.  356 ;  Rost  v.  Harris,  71  Me.  555.     There  are  other  author- 

12  Abb.  Pr.  446.     See  John  v.  Bridg-  ities  which  hold  that  the  advice  of 

man,  27  O.  S.  22.  magistrates  who   are    not    counsel- 

'Ash  V.  Harlow,  20  O.  119;  Mon-  ors  at  law  affords  no  protection, 
aghan  v.  Cox,  155  Mass.  487 ;  01m-  Strouse  v.  Young,  36  Md.  246 ;  Cole- 
stead  V.  Partridge,  16  Gray,  381;  man  v.  Hurick,  2Mackey,  189;  Brobst 
Allen  V.  Codman,  139  Mass.  136 ;  Don-  v.  Ruff,  100  Pa.  St.  91 ;  Gee  v.  Culver, 
nelly  v.  Daggett,  145  Mass.  314 ;  Stew-  12  Greg.  228 ;  Gilbertson  v.  Fuller,  40 
art  V.  Sonneborn,  98  U.  S.  187;  Ber-  Minn.  413;  MacLeod  v.  MacLeod,  73 
nar  V.  Dunlap,  94  Pa.  St.  329 ;  Cooney  Ala.  42.  See  and  compare  Mark  v. 
V.  Chase,  81  Mich.  203 ;  Wicker  v.  Hastings,  13  So.  Rep.  297  (Ala.,  1893). 
43 


754  MALICIOUS    PROSECUTION.  [§  785. 

prosecution.^  He  cannot  be  held  liable  for  an  affidavit  as 
to  facts  which  a  magistrate  erroneously  believes  constitute  a 
crime.'^  A  justice  of  the  peace  in  deciding  upon  the  sufficiency 
of  a  complaint  acts  judicially,  and  if  he  acts  in  good  faith, 
without  malice  and  within  his  jurisdiction,  he  cannot  be  held 
liable  for  errors  of  judgment.^ 

A  person  claiming  protection  because  he  acted  upon  advice 
of  counsel  or  others  must  show  that  he  acted  in  good  faith, 
belie  vine:  he  had  a  good  cause  of  action,  and  did  not  seek  to 
procure  information  merely  to  shelter  himself.  He  must 
show  that  he  made  a  full  and  honest  disclosure  of  all  material 
facts  within  his  knowledge  or  belief.^  If  he  purposely,  care- 
lessly or  negligently  failed  to  give  such  full  statement,  the 
advice  of  counsel  will  not  afford  protection.*  Nor  will  it 
shield  a  defendant  where  it  appears  that  the  prosecution  was 
pursued  for  the  sole  purpose  of  enforcing  the  collection  of  a 
debt,*  or  where  he  does  not  believe  the  accused  guilty.^  A 
defendant  may  state  such  facts  as  will  tend  to  show  probable 
cause,  and  if  he  fails  it  should  be  taken  advantage  of  by  de- 
murrer.^ To  constitute  a  defense  to  an  action  for  malicious 
prosecution,  if  the  facts  stated  in  the  complaint  do  not  con- 
stitute a  crime,  they  must  nevertheless  be  true.^  An  answer 
claiming  that  an  attachment  was  not  sued  out  wrongfully, 
maliciously  or  vexatiously,  or  without  reasonable  or  probable 
cause,  presents  a  substantial  defense  to  the  action.^*'    A  de- 

1  White  V.  Tucker,  16  O.  S.  468.  22  W.  L.  B.  380  (Pa.,  1889);  Mark  v. 

2Hahn  v.  Schmidt,  64  Cal.  284  Hastings,  13  So.  Rep.  297;  Jordan  v. 

3  Vennuni  v,  Huston,  56  N.  W.  Rep.  Railroad  Co.,  81  Ala.  227;  Learid  v. 
970  (Neb.,  1893).  Davis,  17  Ala.  27. 

4  Ash  V.  Marlow,  20  O.  119 
Wicker  v.  Hotchkiss,  62  111.  107 
Monaghan  v.  Cox,  155  Mass.  487 
Scotten    V.    Longfellow.  40  Ind.  23.     Rep.  913  (III.,  1893). 

The  adviser  should  be  learned  in  the        7  Johnson  v.  Miller,  82  la.  693. 
law  and  of  such  training  and  expe-        8  Wilson  v.  Ferrari,  1  Disn.  579. 
rience  that  he  may  safely  be  pre-        9  Dennis   v,  Ryan,   63   Barb.    145; 

sumed   to    give  wise    and    prudent  Forrest  v.  Collier,  20  Ala.  175;  An- 

counsel,  and  must  act  under  a  sense  derson  v.  Buchanan,  8  Ind.  132;  An- 

of  responsibility.     Monaglian  v.  Cox,  derson  v.  Buchanan,  W.  725. 
155  Mass.  487.     See,   also.    Smith  v.       i"  Marshall  v.  Bctner,  17  Ala,  832. 
Davis,  3  Mont  109 ;  Smith  v.  Walter, 


5  Scotten    V.   Longfellow,  40  Ind. 
23. 

6  Neufuld  V.  Rodeninski,  33  N.  E. 


§  785. J  MALICIOUS   PKOSECUTION.  755 

fendant  cannot  be  relieved  upon  the  ground  that  the  com- 
plaint in  the  criminal  proceedings,  for  want  of  proper  allega- 
tion, did  not  legally  set  out  any  criminal  offense,  when  he 
attempted  to  accomplish  such  a  purpose  and  did  cause  an 
arrest  and  trial.* 

» Finn  v.  Frink,  84  Me.  261 ;  a  c,  4  AtL  Rep.  85t 


CHAPTER  57. 


MALPRACTICE. 


Sec.  786.  Malpractice  —  The  petition. 
787.  Petition  against  physician. 


Sec.  788.  Petition  for  damages  against 
a  surgeon. 
789.  Malpractice  —  The  answer. 


Sec.  786.  Malpractice  —  The  petition.—  A  statutory  pen- 
alty is  prescribed  for  practicing  medicine  or  surgery  without 
the  necessary  qualifications;  1  and  an  empiric  is  liable  to  a 
civil  action  for  damage  as  well  as  for  the  statutory  pen- 
alty.2  The  remedy  to  enforce  the  statutory  penalty  is  by  a 
civil  action  in  the  name  of  the  state.^  Physicians  and  sur- 
geons are  required  to  use  not  the  highest,  but  ordinary  skill 
and  diligence.  The  implied  liability,  in  the  absence  of  an  ex- 
press contract  as  to  compensation,  extends  no  further  than 
that  he  will  indemnify  his  patient  against  injurious  conse- 
quences resulting  from  his  want  of  a  proper  degree  of  skill, 
care  or  diligence.  He  is  liable  if  he  is  wanting  in  either.' 
There  can  be  no  recovery- for  negligenth''  reducing  a  fracture 


1 R  S.,  sees.  6992,  4403. 

2  Musser  v.  Chase,  29  O.  S.  577. 

3  State  V.  Cliandler,  7  W.  L.  B.  97; 
R  S.,  sec.  2120. 

4  Craig  V.  Chambers,  17  O.  S.  253; 
Peck  V.  Hutchinson,  55  N.  W.  Rep. 

.511  (la.,  1893);  O'Hara  v.  Wells.  14 
Neb.  403.  The  question  of  a  physician's 
skill  is  a  material  one.  Carpenter  v. 
Blake,  50  N.  Y.  696 ;  Hewitt  v.  Eisen- 
bart,  55  N.  W.  Rep.  252  (Neb.,  1893) ; 
Rowe  V.  Lent.  17  N.  Y.  S.  131 ;  Becker 
V.  Janiski,  15  N.  Y.  S.  674;  Van- 
hoover  V.  Berghoff,  90  Mo.  487 ;  Burn- 
ham  V.  Jackson,  28  Pac.  Rep.  250 
(Colo.,  1893);  Sanderson  v.  Holland, 
39  Mo.  App.  234.  In  absence  of  con- 
tract, physicians  and  surgeons  im- 
pliedly contract  that  they  possess  the 


reasonable  and  ordinary  qualifica- 
tions of  their  profession.  Landon  v. 
Humphrey,  9  Conn.  209;  Kendall  v. 
Brown.  74  111.  231 ;  Small  v.  Howard, 
128  Mass.  131;  .Ballou  v.  Prescott,  64 
Me.  305;  Leighton  v.  Sargent,  31 
N.  H.  119;  Ely  v.  Wilbur,  49  N.  J. 
Law,  685 ;  10  Atl.  Rep.  385,  441 ;  Pot- 
ter V.  Warner,  91  Pa.  St.  362;  Ha- 
thorn  V.  Richmond,  48  Vt.  557 ;  Gates 
V.  Fleischer,  67  Wis.  504 ;  30  N.  W. 
Rep.  674.  This  skill  is  measured  by 
the  general  line  of  practice.  Utley 
V.  Burns,  70  111.  162;  Almond  v. 
Nugent,  34  la.  300.  Regard  must  be 
had  for  the  advanced  state  of  the 
profession.  Smother  v.  Hanks,  34 
la.  286;  Nelson  v.  Harrington,  72 
Wis.  591. 


§  78G.]  MALPRACTICE.  T57 

where  there  is  no  evidence  of  the  want  of  ordinary  skill.^ 
Failure  to  use  ordinary  skill  in  discovering  a  serious  rupture, 
after  repeated  examinations  for  the  purpose,  is  such  negligence 
as  will  render  a  physician  liable  to  damages,'^  Where  the  act  to 
be  done  depends  upon  the  skill  of  the  agent,  and  the  opera- 
tion of  causes  over  which  he  has  no  control,  a  promise  to  cure 
will  not  be  implied  from  an  undertaking  to  cure.^  Nominal 
damages  only  can  be  recovered,  unless  the  plaintiff  shows  in- 
jury resulting  from  negligence  or  want  of  due  skill.*  Although 
physicians  are  bound  to  the  universally  accepted  methods  of 
cure,  yet  where  there  is  a  difference  of  opinion  among  prac- 
tical and  skilful  surgeons,  they  may  exercise  their  best  judg- 
ment and  cannot  be  held  liable  for  mere  error  therein.*  He 
is  not  a  warrantor  of  a  cure  unless  he  makes  a  special  con- 
tract to  that  effect.^  Nor  is  an  attorney  at  law  liable  for 
neglect  of  his  professional  duty  where  the  negligence  com- 
plained of  in  its  legal  effect  does  not  work  any  injury  to  his 
client.^  But  an  attorney  is  liable  for  malpractice  where  a 
client  or  a  third  person  has  been  damaged  by  his  negligence.* 
A  physician  may  be  sued  either  for  tort  or  upon  a  contract 
express  or  implied  existmg  between  himself  and  patient  ;^  and  if 
upon  contract,  the  petition  should  show  who  requested  the  serv- 
ice and  with  whom  the  contract  was  made.^"  If  the  facts  stated 
do  not  suflBciently  show  a  contract  and  a  breach,  the  action 

1  Winner  v.  Lathrop,  22  N.  Y.  S.  '  Harter  v.  Morris,  18  O.  S.  492. 
516.  sjjoosac  Tunnel  Dock,  etc.  Co.  v. 

2  Lewis  V.  Dwinell,  84  Me.  497.  O'Brien,  137  Mass.  424-427;  Looff  v. 

3  Bliss  V.  Long,  W.  351,  352;  Gal-  Lawton,  97  N.  Y.  478.    See  Weeks 
lagher  v.  Thompson,  W.  460.  on  Attorneys,  sec.  132 ;  State  v.  Chap- 

4  Craig  V.  Chambers,  17  O.  S.  253.  man,  11  O.  430. 

5Pittigrew  v.  Lewis,  46  Kan.  78;        9  Glad  well  v.  Steggall,  5  Bing.  N.  G 

26  Pac.  Rep.  458  (1891) ;  Burnhara  v.  733;  Pippin   v.  Sheppard,  11    Price, 

Jackson,  28  Pac.  Rep.  250  (Colo.,  1891) ;  400 ;  Lane  v.  Boiscourt,  128  Ind.  420 ; 

Vanhooser  v.  Borghoflf,  90  Mo.  488.  S.  G,   27   N.   K    Rep.   1111.      As  to 

The  test  of  the  treatment  is  governed  waiver  of  tort,  see  De  Hart  v.  Haun, 

by  the  general  doctrine  of  the  school  126  Ind.  378 ;  Globe  v.  Dillon,  86  Ind. 

to  which  the  defendant  belongs,  and  337 ;  &  G,  44  Am.  Rep.  408.     An  ac- 

not  by  any  other.     Patten  v.  Wiggin,  tion  for  negligence  in  reducing  a  dis- 

51  Me.  594;  Force  v.  Gregory,  27  Atl.  located  arm  sliould  ordinarily  be  an 

Rep.  1116  (Conn.,  1893).  action  in  tort.     McCrory  v.  Skinner. 

•>  Burnham  v.  Jackson,  supra;  Pat-  2  W.  L.  M.  203. 
ten  V.  Wiggin,  51  Me.  59G.  lo  Scudder  v.  Crosson,  43  Ind.  34a. 


758  MALPEACTICE.  [§  787. 

will  be  considered  one  in  tort.*  An  action  for  unskilfully  per- 
forming an  operation  may  be  joined  with  one  for  malicious!}'- 
pretending  that  he  would  effect  a  cure,  with  intent  to  defraud.^ 
An  action  may  be  maintained  against  two  physicians  who  are 
in  partnership  for  the  malpractice  of  one  of  them.'  The  peti- 
tion should  allege  the  specific  things  concerning  which  neg- 
ligence is  imputed.*  In  an  action  against  a  physician  for 
malpractice,  proof  that  he  was  a  cancer  doctor,  having  skill 
and  experience  in  the  cure  and  treatment  of  cancers,  is  not  a 
variance.*  The  action  may  be  maintained  by  the  personal 
representative  of  a  person  whose  death  occurs  by  reason  of 
the  negligence  of  a  physician.* 

Sec.  787.  Petition  against  physician. — 

Plaintiff  complains  of  the  said  J.  M.,  defendant,  for  that 
the  plaintiff,  before  and  at  the  time  of  the  retainer  of  the  de- 
fendant hereinafter  mentioned,  had  a  small  tumor  on  her  nose, 
the  precise  nature  of  which  she  did  not  know,  and  that  after- 
wards, to  wit,  on  or  about  the  day   of ,  18 — ,  the 

said  plaintiff,  at  the  special  instance  and  request  of  the  said 
defendant,  employed  and  retained  him,  said  defendant,  as  a 
physician  to  treat  and  cure  the  same  for  a  reasonable  fee  and 
reward  to  be  by  her  to  him  paid ;  and  the  said  defendant 
undertook  and  entered  upon  such  retainer  and  employment; 
yet  the  said  defendant,  not  regarding  his  duty  in  the  premises, 
so  carelessly,  negligently  and  unskilfully  treated  said  disease, 
and  nursed'^and  attended  to  said  plaintiff  for  the  cure  of  said 
tumor,  that  the  plaintiff,  by  reason  of  such  unskilfulness,  care- 
lessness and  negligence,  has  wholly  lost  her  nose ;  that  she  has 
been  greatly  injured  and  rendered  unfit  to  follow  her  lawful 
business,  which  is  that  of  a  school  teacher,  and  became  thereby 
sick  and  continued  sick  and  unable  to  attend  to  her  said  busi- 
ness and  work  for  a  long  period,  to  wit, ,  and  during  said 

period  suffered  and  was  in  great  bodily  pain,  and  was  put  to 
great  expense  in  and  about  the  cure  of  her  nose,  so  that  by 
the  defendant's  carelessness  and  unskilfulness  plaintiff  has 
suffered  damages  in  the  sum  of  $ . 

[Prayer.]  J.  P.  B.,  Attorney. 

Note.—  From  Musser  v.  Chase,  29  O.  S.  577.  Proof  that  the  physician 
accepted  the  employment  will  sustain  the  allegation  that  he  was  employed 
at  his  special  instance  and  request     Id. 

1  De  Hart  v.  Haun,  126  Ind.  378.  Ind.  225 ;  Fletcher  v.  Ingram,  46  Wis. 

2  Cadwell  v.  Farrell,  28  111.  438.  191 ;  Taylor  v.  Jones,  43  N.  H.  25. 

3  Hyrne  v.  Erwin,  23  S.  C.  226 ;  S.  C,  *  Hawley  v.  Williams,  90  Ind.  160. 
55  Am.  Rep.  15 ;  Hess  v.  Lowrey,  122  &  Musser  v.  Chase,  29  O.  S.  577. 

6  Chase  v.  Nelson,  39  111.  App.  53. 


§§  788,  789.]  MALPRACTICE.  759 

Sec.  788.  Petition  for  damages  against  surgeon. — 

[Caption  and  formal  avermejits.] 

That  on  the  day  of ,  18 — ,  plaintiff  met  with  an 

accident  in  which  his  left  hip  was  dislocated,  and  on  the 

day  of ,  18 — ,  for  a  reasonable  fee,  he  employed  the  de- 
fendant A.  B.,  who  was  then  and  is  now  a  practicing  physi- 
cian and  surgeon  in  the  city  of  C,  who  makes  a  specialty  of 
the  practice  of  surgery,  and  holds  himself  out  to  the  public 
as  possessing  special  skill  in  this  branch.  That  said  defend- 
ant thereupon  undertook  such  employment  and  did  set  plaint- 
iff's said  hip,  but,  disregarding  his  duty  in  the  premises,  he  did 
so  negligently  and  unskilfully  set  plaintiff's  hip  that  by  rea- 
son thereof  [state  damages  sustained]. 

That  by  reason  of  the  aforesaid  negligence  of  said  defend- 
ant plaintiff  has  sustained  damages  in  the  sum  of  $ ,  for 

which  he  asks  judgment  against  said  defendant. 

Sec.  789.  Petition  for  malpractice  in  wrongfully  diag- 
nosing disease. — 

Defendant  has  for  several  years  prior  to ,  18 — ,  been 

engaged  in  the  practice  of  medicine  and  surgery  in  the  city 
of ,  holding  himself  out  to  the  public  as  a  physician,  at- 
tending to  all  diseases  or  ailments  of  the  human  body. 

That  on  or  about  the day  of ,  18 — ,  the  plaintiff 

T.  N.  was  afflicted  with  a  disease  of  his  right  hip,  and  on  or 
about  that  date  called  the  said  defendant  in  to  attend  and 
treat  him  for  said  disease;  that  defendant  thereupon  under- 
took to  attend  plaintiff  and  treat  said  disease,  but  that,  disre- 
garding his  duty,  defendant  wrongfully  and  carelessly  failed 
to  make  a  proper  examination  of  plaintiff,  such  as  a  physician 
of  ordinary  skill  would  have  done,  and  pronounced  said  disease 
to  be  rheumatism,  when  in  fact  it  was  a  disease  of  the  hip- 
joint,  which  said  disease  has  well-known,  peculiar  signs  and 
symptoms  which  a  physician  of  ordinary  skill  and  care  would 
at  once  detect. 

That  the  defendant,  disregarding  his  duty  as  a  physician, 
negligently  and  unskilfuU}'  treated  the  plaintiff  for  rheuma- 
tism, and  not  hip-joint  disease,  and  continued  to  so  treat  him 
until ,  18—. 

That  on  or  about  the day  of ,  18—,  plaintiff  began 

to  entirely  lose  the  use  of  his  said  leg,  and  called  in  other  phy- 
sicians, when  by  careful  and  thorough  treatment  plaintiff  par- 
tially recovered  the  use  of  his  said  limb,  but  that  he  will  be, 
by  reason  of  said  defendant's  negligent  treatment,  ])erma- 
nently  crippled.  That  if  defendant  had  exercised  due  care 
and  skill  in  the  treatment  of  plaintiff,  he  would  have  speedily 
and  completely  recovered.     [Set  out  any  special  damages.] 

[Prayer.] 

Note. —  If  the  gravamen  of  the  action  against  a  physician  is  in  failing 
to  make  pro])er  diagnosis  and  to  prescribe  proper  remedies,  tiie  action  is  in 


760  MALPRACTICE.  [§  789cJ. 

tort  ;md  not  contract  If  the  action  is  upon  contract,  the  special  contract 
milst  be  set  out.  Wood  v.  Railroad  Co.,  33  Wis.  398;  Nelson  v.  Harrington. 
72  Wis.  591. 

Sec.  789a.  Malpractice  —  The  answer. —  A  patient  whose 
own  neglect  or  carelessness  concurs  with  the  maltreatment 
of  the  physician  in  causing  injury  cannot  recover;^  and  so  if 
the  injury  be  caused  by  the  careless  treatment  of  the  patient's 
parents  or  others  having  charge,^  The  negligence  to  consti- 
tute a  defense  must  have  concurred  in  producing  the  injury.' 

1  Becker  v.  Janiski,  15  N.  Y.  S.  675 ;        2  Sanderson    v.    Holland,    89    Ma 
Gramui  v.  Boener,  56  Ind,  497 ;  Hib-    App.  284. 
bard  v.   Thompson,  109  Mass.  286 ;        3  Cooley  on  Torts,  p.  683, 
Jones  V.  Angell,  95  Ind., 376;  Lower 
V.  Franks,  115  lud.  834. 


fc^ 


